Exhibit 1.1
BYE-LAWS
OF
Brilliance China Automotive
Holdings Limited
(As adopted by a Resolution passed on 16th November, 2007)
TABLE OF CONTENTS
PRELIMINARY ............................................................... 1
SHARES, WARRANTS AND MODIFICATION OF RIGHTS ............................... 6
SHARES AND INCREASE OF CAPITAL ............................................ 7
REGISTER OF SHAREHOLDERS AND SHARE CERTIFICATES ........................... 10
LIEN ...................................................................... 12
CALLS ON SHARES ........................................................... 13
TRANSFER OF SHARES ........................................................ 15
TRANSMISSION OF SHARES .................................................... 18
FORFEITURE OF SHARES ...................................................... 19
ALTERATION OF CAPITAL ..................................................... 21
GENERAL MEETINGS .......................................................... 23
PROCEEDINGS AT GENERAL MEETINGS ........................................... 25
VOTES OF SHAREHOLDERS ..................................................... 28
REGISTERED OFFICE ......................................................... 32
BOARD OF DIRECTORS ........................................................ 32
APPOINTMENT AND RETIREMENT OF DIRECTORS ................................... 40
BORROWING POWERS .......................................................... 42
EXECUTIVE DIRECTORS, ETC. ................................................. 43
MANAGEMENT ................................................................ 44
MANAGERS .................................................................. 45
CHAIRMAN AND OTHER OFFICERS ............................................... 45
PROCEEDINGS OF THE DIRECTORS .............................................. 46
MINUTES ................................................................... 48
SECRETARY ................................................................. 49
GENERAL MANAGEMENT AND USE OF THE SEAL .................................... 49
AUTHENTICATION OF DOCUMENTS ............................................... 52
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CAPITALISATION OF RESERVES ................................................ 52
DIVIDENDS, CONTRIBUTED SURPLUS AND RESERVES ............................... 53
DISTRIBUTION OF REALISED CAPITAL PROFITS .................................. 62
ANNUAL RETURNS ............................................................ 62
ACCOUNTS .................................................................. 62
AUDITORS .................................................................. 64
NOTICES ................................................................... 66
INFORMATION ............................................................... 68
WINDING UP ................................................................ 69
INDEMNITY ................................................................. 69
UNTRACEABLE SHAREHOLDERS .................................................. 70
DESTRUCTION OF DOCUMENTS .................................................. 71
RESIDENT REPRESENTATIVE ................................................... 72
MAINTENANCE OF RECORDS .................................................... 73
SUBSCRIPTION RIGHT RESERVE ................................................ 73
RECORD DATES .............................................................. 76
STOCK ..................................................................... 76
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NEW BYE-LAWS
(AS ADOPTED BY A RESOLUTION PASSED ON 16TH NOVEMBER, 2007)
OF
BRILLIANCE CHINA AUTOMOTIVE HOLDINGS LIMITED
PRELIMINARY
1. (A) The marginal notes to these Bye-Laws shall not be deemed to Marginal Notes
be part of these Bye-Laws and shall not affect their
interpretation and, in the interpretation of these Bye-Laws,
unless there be something in the subject or context
inconsistent therewith:-
"address" shall have the ordinary meaning given to it and Definitions
shall include any facsimile number, electronic number or
address or website used for the purposes of any
communication pursuant to these Bye-Laws;
"appointed newspaper" shall have the meaning as defined in Definitions
the Companies Act;
"associates" shall have the meaning ascribed thereto in the
Listing Rules;
"Auditors" shall mean the persons for the time being
performing the duties of that office;
"Bermuda" shall mean the Islands of Bermuda;
"the Board" shall mean the board of directors of the Company
as constituted from time to time or (as the context may
require) the majority of Directors present and voting at a
meeting of the Directors at which a quorum is present;
"these Bye-Laws" or "these presents" shall mean these
Bye-Laws in their present form and all supplementary,
amended or substituted Bye-Laws for the time being in force;
"call" shall include any instalment of a call;
"capital" shall mean the share capital from time to time of
the Company;
"the Chairman" shall mean the Chairman presiding at any
meeting of shareholders or of the Board;
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"Clearing House" means a recognised clearing house within
the meaning of Part I of Schedule 1 to the Securities and
Futures Ordinance (Chapter 571 of the Laws of Hong Kong) or
a clearing house or authorised shares depository recognised
by the laws of the jurisdiction in which the shares of the
Company are listed or quoted on a stock exchange in such
jurisdiction;
"the Companies Act" shall mean the Companies Act 1981 of
Bermuda as may from time to time be amended;
"the Company" or "this Company" shall mean Brilliance China
Automotive Holdings Limited incorporated in Bermuda on 9th
June, 1992;
"corporate representative" means any person appointed to act
in that capacity pursuant to Bye-laws 87A or 87B;
"debenture" and "debenture holder" shall respectively
include "debenture stock" and "debenture stockholder";
"Director" means a director of the Company;
"dividend" shall include scrip dividends, distributions in
specie or in kind, capital distributions and capitalisation
issues, if not inconsistent with the subject or context;
"electronic" shall mean relating to technology having
electrical, digital, magnetic, wireless, optical
electromagnetic or similar capabilities and such other
meanings as given to it in the Electronic Transactions Act
1999 of Bermuda as may be amended from time to time;
"Head Office" shall mean such office of the Company as the
Directors may from time to time determine to be the
principal office of the Company;
"HK$" shall mean Hong Kong dollars or other lawful currency
of Hong Kong;
"holding company" and "subsidiary" shall have the meanings
ascribed to them by the Companies Act;
"Listing Rules" shall mean the Rules Governing the Listing
of Securities on the Stock Exchange of Hong Kong Limited (as
amended from time to time);
"month" shall mean a calendar month;
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"Newspapers", in relation to the publication in newspapers
of any notice, shall mean in English in one leading English
language daily newspaper and in Chinese in one leading
Chinese language daily newspaper published and circulating
generally in the Relevant Territory and specified for this
purpose by the stock exchange in the Relevant Territory;
"paid up" in relation to a share, shall mean paid up or
credited as paid up;
"the Principal Register" shall mean the register of
shareholders of the Company maintained in Bermuda;
"the register" shall mean the Principal Register and any
branch register to be kept pursuant to the provisions of the
Statutes;
"Registered Office" shall mean the registered office of the
Company for the time being;
"Registration Office" shall mean in respect of any class of
share capital, such place or places in the Relevant
Territory or elsewhere where the Directors from time to time
determine to keep a branch register of shareholders in
respect of that class of share capital and where (except in
cases where the Directors otherwise agree) transfers or
other documents of title for such class of share capital are
to be lodged for registration and are to be registered;
"Relevant Territory" shall mean Hong Kong or such other
territory as the Directors may from time to time decide if
the issued ordinary share capital of the Company is listed
on a stock exchange in such territory;
"Seal" shall mean any one or more common seals from time to
time of the Company for use in Bermuda or in any place
outside Bermuda;
"Secretary" shall mean the person or corporation for the
time being performing the duties of that office;
"Securities Seal" shall mean a seal for use for sealing
certificates for shares or other securities issued by the
Company which is a facsimile of the Seal of the Company with
the addition on its face of the words "Securities Seal";
"share" shall mean share in the capital of the Company;
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"shareholder" shall mean the duly registered holder from
time to time of the shares in the capital of the Company;
"Statutes" shall mean the Companies Act and any other act
(as emended from time to time) for the time being in force
of the Legislature of Bermuda applying to or affecting the
Company, the Memorandum of Association and/or these presents
and shall include the Electronic Transactions Act 1999 of
Bermuda as may be amended from time to time;
"subsidiaries" shall have the meaning ascribed thereto under
Rule 1.01 of the Listing Rules;
"Summary Financial Reports" shall mean the summary financial
report which is derived from and summaries the complete
annual Directors' report and the Auditors' report and as
defined in the Companies Ordinance, Chapter 32 of Laws of
Hong Kong;
"Transfer Office" shall mean the place where the Principal
Register is situate for the time being;
"writing" or "printing" shall include writing, printing,
lithography, photography, typewriting and every other mode
of representing words or figures in a legible and
non-transitory form.
(B) In these Bye-Laws, unless there be something in the subject General
or context inconsistent herewith:
words denoting the singular shall include the plural and
words denoting the plural shall include the singular;
words importing any gender shall include every gender and
words importing persons shall include partnerships, firms,
companies and corporations;
subject as aforesaid, any words or expressions defined in
the Companies Act (except any statutory modification thereof
not in force when these Bye-Laws become binding on the
Company) shall, if not inconsistent with the subject and/or
context, bear the same meaning in these Bye-Laws, save that
"company" shall where the context permits include any
company incorporated in Bermuda or elsewhere; and
references to any statute or statutory provision shall be
construed as relating to any statutory modification or
re-enactment thereof for the time being in force.
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(C) A resolution shall be a Special Resolution when it has been Special
passed by a majority of not less than three-fourths of the Resolution
votes cast by such shareholders as, being entitled so to do,
vote in person or, by a duly authorised corporate
representative or, where proxies are allowed, by proxy at a
general meeting of which not less than 21 days' notice,
specifying (without prejudice to the power contained in
these presents to amend the same) the intention to propose
the resolution as a Special Resolution, has been duly given.
Provided that, if it is so agreed by a majority in number of
the shareholders having a right to attend and vote at any
such meeting, being a majority together holding not less
than 95 per cent. in nominal value of the shares giving that
right, a resolution may be proposed and passed as a Special
Resolution at a meeting of which less than 21 days' notice
has been given.
(D) A resolution shall be an Ordinary Resolution when it has Ordinary
been passed by a simple majority of the votes cast by such Resolution
shareholders as, being entitled so to do, vote in person or
by a duly authorised corporate representative or, where
proxies are allowed, by proxy at a general meeting held in
accordance with these presents and of which not less than 14
days' notice has been duly given. Provided that, if it is so
agreed by a majority in number of the shareholders having a
right to attend and vote at any such meeting, being a
majority together holding not less than 95 per cent. in
nominal value of the shares giving that right, a resolution
may be proposed and passed as a Ordinary Resolution at a
meeting of which less than 14 days' notice has been given.
(E) A Special Resolution shall be effective for any purpose for Special
which an Ordinary Resolution is expressed to be required Resolution
under any provision of these Bye-Laws or the Statutes. effective as
Ordinary
Resolution
2. Without prejudice to any other requirements of the Statutes, a When Special
Special Resolution shall be required to alter the Memorandum of Resolution is
Association, to approve any amendment of these presents or to required
change the name of the Company.
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SHARES, WARRANTS AND MODIFICATION OF RIGHTS
3. Without prejudice to any special rights or restrictions for the Issue of
time being attaching to any shares or any class of shares, any shares
share may be issued upon such terms and conditions and with such
preferred, deferred or other special rights, or such restrictions,
whether in regard to dividend, voting, return of capital or
otherwise, as the Company may from time to time by Ordinary
Resolution determine (or, in the absence of any such determination
or so far as the same may not make specific provision, as the
Board may determine) and any preference share may, subject to the
Companies Act and with the sanction of a Special Resolution, be
issued on the terms that it is liable to be redeemed upon the
happening of a specified event or upon a given date and either at
the option of the Company or, if so authorised by the Memorandum
of Association of the Company, at the option of the holder.
4. The Board may, subject to the approval by the shareholders in Warrants
general meeting, issue warrants to subscribe for any class of
shares or securities of the Company on such terms as the Board may
from time to time determine. Where warrants are issued to bearer,
no certificate thereof shall be issued to replace one that has
been lost unless the Board is satisfied beyond reasonable doubt
that the original certificate thereof has been destroyed and the
Company has received an indemnity in such form as the Board shall
think fit with regard to the issue of any such replacement
certificate.
5. (A) For the purposes of Section 47 of the Companies Act, if at How rights of
any time the capital is divided into different classes of shares may be
shares, all or any of the special rights attached to any modified
class (unless otherwise provided for by the terms of issue
of the shares of that class) may, subject to the provisions
of the Companies Act, be varied or abrogated either with the
consent in writing of the holders of not less than
three-fourths in nominal value of the issued shares of that
class or with the sanction of a Special Resolution passed at
a separate general meeting of the holders of the shares of
that class. To every such separate general meeting the
provisions of these Bye-Laws relating to general meetings
shall mutatis mutandis apply, but so that the necessary
quorum shall be not less than two persons holding or
representing by proxy one-third in nominal value of the
issued shares of that class, and that any holder of shares
of the class present in person or by proxy or by a duly
authorised corporate representative may demand a poll.
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(B) The provisions of this Bye-Law shall apply to the variation
or abrogation of the special rights attached to the shares
of any class as if each group of shares of the class
differently treated formed a separate class the rights
whereof are to be varied or abrogated.
(C) The special rights conferred upon the holders of any shares
or class of shares shall not, unless otherwise expressly
provided in the rights attaching to or the terms of issue of
such shares, be deemed to be altered by the creation or
issue of further shares ranking pari passu therewith.
SHARES AND INCREASE OF CAPITAL
6. (A) The authorised share capital of the Company is US$80,000,000
divided into 8,000,000,000 shares of US$0.01 each.
(B) Subject to the Statutes, the power contained in the Company to
Memorandum of Association for the Company to purchase or purchase its
otherwise acquire its shares shall be exercisable by the own shares
Board upon such terms and subject to such conditions as it
thinks fit.
(C) Subject, where applicable, to the rules of any relevant Company to
stock exchange, the Company may in accordance with an finance
employees' share scheme approved by the shareholders in acquisition of
general meeting provide money on such terms as the Board own shares
thinks fit for the acquisition of fully or partly paid
shares in the Company or its holding company. For the
purposes of this Bye-Law, an employees' share scheme is a
scheme for encouraging or facilitating the holding of shares
or debentures in the Company by or for the benefit of bona
fide employees or former employees (including,
notwithstanding Section 96 of the Companies Act, any such
bona fide employee or former employee who is or was also a
director) of the Company, a subsidiary of the Company or
holding company or a subsidiary of the Company's holding
company, or the wives, husbands, widows, widowers or
children or step-children under the age of twenty-one of
such employees or former employees.
(D) Subject, where applicable, to the rules of any relevant
stock exchange, the Company, a subsidiary of the Company or
holding company or a subsidiary of the Company's holding
company may make loans to persons (including,
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notwithstanding Section 96 of the Companies Act, any such
bona fide employee or former employee who is or was also a
director) employed in good faith by the Company with a view
to enabling those persons to acquire fully or partly paid
shares in the Company or its holding company to be held by
them by way of beneficial ownership.
(E) The conditions subject to which money and loans are provided
under paragraphs (C) and (D) of this Bye-Law may include a
provision to the effect that when an employee ceases to be
employed by the Company, the shares acquired with such
financial assistance shall or may be sold to the Company on
such terms as the Board thinks fit.
7. The Company in general meeting may from time to time, whether or Power to
not all the shares for the time being authorised shall have been increase
issued and whether or not all the shares for the time being issued capital
shall have been fully paid up, by Ordinary Resolution increase its
share capital by the creation of new shares, such new capital to
be of such amount and to be divided into shares of such class or
classes and of such amounts in Hong Kong dollars or United States
dollars or such other currency as the shareholders may think fit
and as the resolution may prescribe.
8. Any new shares shall be issued upon such terms and conditions and On what
with such rights, privileges or restrictions annexed thereto as conditions new
the general meeting resolving upon the creation thereof shall shares may be
direct, and if no direction be given, subject to the provisions of issued
the Statutes and of these Bye-Laws, as the Board shall determine;
and in particular such shares may be issued with a preferential or
qualified right to dividends and in the distribution of assets of
the Company and with a special right or without any right of
voting.
9. The Company may by Ordinary Resolution, before the issue of any When to be
new shares, determine that the same, or any of them, shall be offered to
offered in the first instance, and either at par or at a premium, existing
to all the existing holders of any class of shares in proportion shareholders
as nearly as may be to the number of shares of such class held by
them respectively, or make any other provisions as to the issue
and allotment of such shares, but in default of any such
determination or so far as the same shall not extend, such shares
may be dealt with as if they formed part of the capital of the
Company existing
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prior to the issue of the same.
10. Except so far as otherwise provided by the conditions of issue or New shares to
by these Bye-Laws, any capital raised by the creation of new form part of
shares shall be treated as if it formed part of the original original
capital of the Company and such shares shall be subject to the capital
provisions contained in these Bye-Laws with reference to the
payment of calls and instalments, transfer and transmission,
forfeiture, lien, cancellation, surrender, voting and otherwise.
11. All unissued shares shall be at the disposal of the Board and it Shares at the
may offer, allot (with or without conferring a right of disposal of
renunciation), grant options over or otherwise dispose of them to the Board
such persons, at such times, for such consideration and generally
on such terms as it in its absolute discretion thinks fit, but so
that no shares shall be issued at a discount. The Directors shall,
as regards any offer or allotment of shares, comply with the
provisions of the Companies Act, if and so far as such provisions
may be applicable thereto. Neither the Company nor the Board shall
be obliged, when making or granting any allotment of, offer of,
option over or disposal of shares, to make, or make available, any
such offer, option or shares to shareholders or others with
registered addresses in any particular territory or territories
being a territory or territories where, in the absence of a
registration statement or other special formalities, this would or
might, in the opinion of the Board, be unlawful or impracticable.
Shareholders affected as a result of the foregoing sentence shall
not be, or be deemed to be, a separate class of shareholders for
any purpose whatsoever.
12. The Company may at any time pay a commission to any person for Company may
subscribing or agreeing to subscribe (whether absolutely or pay commission
conditionally) for any shares in the Company or procuring or
agreeing to procure subscriptions (whether absolute or
conditional) for any shares in the Company, but so that the
conditions and requirements of the Companies Act shall be observed
and complied with, and in each case the commission shall not
exceed ten per cent. of the price at which the shares are issued.
13. Except as otherwise expressly provided by these Bye-Laws or as Company not
required by law or as ordered by a court of competent to recognise
jurisdiction, no person shall be recognised by the Company as trusts in
holding any share upon any trust and, except as aforesaid, the respect of
Company shall not be bound by or be compelled in any way to shares
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recognise (even when having notice thereof) any equitable,
contingent, future or partial interest in any share or any
interest in any fractional part of a share or any other right or
claim to or in respect of any shares except an absolute right to
the entirety thereof of the registered holder.
REGISTER OF SHAREHOLDERS AND SHARE CERTIFICATES
14. (A) The Board shall cause to be kept a register of the Share register
shareholders and there shall be entered therein the
particulars required under the Companies Act.
(B) Subject to the provisions of the Companies Act, if the Board Local or
considers it necessary or appropriate, the Company may branch
establish and maintain a local or branch register at such register
location outside Bermuda as the Board thinks fit and, while
the issued share capital of the Company is, with the consent
of the Board, listed on any stock exchange in the Relevant
Territory, the Company shall keep a branch register in the
Relevant Territory.
15. Every person whose name is entered as a shareholder in the Share
register shall be entitled without payment to receive within two Certificates
months after allotment or lodgment of a transfer (or within such
other period as the conditions of issue shall provide or, such
shorter period as such stock exchange may from time to time
prescribe) one certificate for all his shares, or, if he shall so
request, in a case where the allotment or transfer is of a number
of shares in excess of the number for the time being forming a
stock exchange board lot for the purposes of the stock exchange on
which the shares are listed, upon payment, in the case of a
transfer, of such sum (not exceeding in the case of any share
capital listed on a stock exchange in the Relevant Territory,
HK$2.50 or such greater sum as such stock exchange may from time
to time permit, and in the case of any other shares, such sum in
such currency as the Board may from time to time determine to be
reasonable in the territory in which the relevant register is
situate, or otherwise such other sum as the Company may by
Ordinary Resolution determine) for every certificate after the
first as the Board may from time to time determine, such number of
certificates for shares in stock exchange board lots or multiples
thereof as he shall request and one for the balance (if any) of
the shares in question, provided that in respect of a share or
shares held jointly by several persons the Company shall not be
bound to issue a certificate or certificates to each such person,
and
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the issue and delivery of a certificate or certificates to one of
the joint holders shall be sufficient delivery to all such
holders.
16. Every certificate for shares, warrants or debentures or Share
representing any other form of securities of the Company shall be certificates
issued under the Seal of the Company, which for this purpose may to be sealed
be a Securities Seal.
17. Every share certificate hereafter issued shall specify the number Share
and class of shares in respect of which it is issued and the certificate
amount paid thereon and may otherwise be in such form as the Board to specify
may from time to time prescribe. A share certificate shall relate number and
to only one class of shares. class of
shares
18. (A) The Company shall not be bound to register more than four Joint holders
persons as joint holders of any share.
(B) If any share shall stand in the names of two or more
persons, the person first named in the register shall be
deemed the sole holder thereof as regards service of notice
and, subject to the provisions of these Bye-Laws, all or any
other matter connected with the Company, except the transfer
of the shares.
19. If a share certificate is defaced, lost or destroyed, it may be Replacement
replaced on payment of such fee, if any, (not exceeding, in the of share
case of any share capital listed on a stock exchange in the certificates
Relevant Territory, HK$2.50 or such greater sum as such stock
exchange may from time to time permit, and, in the case of any
other capital, such sum in such currency as the Board may from
time to time determine to be reasonable in the territory in which
the relevant register is situate, or otherwise such sum as the
Company may by Ordinary Resolution determine) as the Board shall
from time to time determine and on such terms and conditions, if
any, as to publication of notices, evidence and indemnity as the
Board thinks fit and in the case of wearing out or defacement,
after delivery up of the old certificate. In the case of
destruction or loss, the person to whom such replacement
certificate is given shall also bear and pay to the Company any
exceptional costs and the reasonable out-of-pocket expenses
incidental to the investigation by the Company of the evidence of
such destruction or loss and of such indemnity.
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LIEN
20. The Company shall have a first and paramount lien and charge on Company's lien
every share (not being a fully paid up share) for all moneys,
whether presently payable or not, called or payable at a fixed
time in respect of such share. The Company shall also have a first
and paramount lien and charge on all shares (other than fully paid
up shares) standing registered in the name of a shareholder,
whether singly or jointly with any other person or persons, for
all the debts and liabilities of such shareholders or his estate
to the Company and whether the same shall have been incurred
before or after notice to the Company of any equitable or other
interest of any person other than such shareholder, and whether
the period for the payment or discharge of the same shall have
actually arrived or not, and notwithstanding that the same are
joint debts or liabilities of such shareholder or his estate and
any other person, whether a shareholder of the Company or not. The
Company's lien (if any) on a share shall extend to all dividends
and bonuses declared in respect thereof. The Board may at any time
either generally or in any particular case waive any lien that has
arisen, or declare any share to be exempt wholly or partially from
the provisions of this Bye-Law.
21. The Company may sell, in such manner as the Board thinks fit, any Sale of shares
shares on which the Company has a lien, but no sale shall be made subject to
unless some sum in respect of which the lien exists is presently lien
payable or the liability or engagement in respect of which such
lien exists is liable to be presently fulfilled or discharged, nor
until the expiration of fourteen days after a notice in writing,
stating and demanding payment of the sum presently payable or
specifying the liability or engagement and demanding fulfilment or
discharge thereof and giving notice of intention to sell in
default, shall have been given to the registered holder for the
time being of the shares or the person entitled to the shares by
reason of such holder's death, bankruptcy or winding-up.
22. The net proceeds of such sale after the payment of the costs of Application
such sale shall be applied in or towards payment or satisfaction of proceeds
of the debt or liability or engagement in respect whereof the lien of sale
exists, so far as the same is presently payable, and any residue
shall (subject to a like lien for debts or liabilities not
presently payable as existed upon the shares prior to the sale) be
paid to the person entitled to the shares at the time of the sale.
For the purpose of giving effect to any such sale, the
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Board may authorise some person to transfer the shares sold to the
purchaser thereof and may enter the purchaser's name in the
register as holder of the shares, and the purchaser shall not be
bound to see to the application of the purchase money, nor shall
his title to the shares be affected by any irregularity or
invalidity in the proceedings in relating to the sale.
CALLS ON SHARES
23. The Board may from time to time make such calls as it may think Calls/
fit upon the shareholders in respect of any moneys unpaid on the instalments
shares held by them respectively (whether on account of the
nominal value of shares or by way of premium) and not by the
conditions of issue or allotment thereof made payable at a fixed
time. A call may be made payable either in one sum or by
instalments.
24. Fourteen days' notice at least of any call shall be given Notice of call
specifying the time and place of payment and to whom such call
shall be paid.
25. A copy of the notice referred to in Bye-Law 24 shall be sent to Copy of notice
shareholders in the manner in which notices may be sent to to be sent to
shareholders by the Company as herein provided. shareholders
26. In addition to the giving of notice in accordance with Bye-Law 25, Notice of call
notice of the person appointed to receive payment of every call may be given
and of the times and places appointed for payment may be given to
the shareholders by notice to be published at least once in the
Newspapers or such other manner as permissible under the Listing
Rules.
27. Every shareholder upon whom a call is made shall pay the amount of Time and
every call so made on him to the person and at the time or times place for
and place or places as the Board shall appoint. payment of
call
28. A call shall be deemed to have been made at the time when the When call
resolution of the Board authorising such call was passed. deemed to have
been made
29. The joint holders of a share shall be severally as well as jointly Liability of
liable for the payment of all calls and instalments due in respect joint holders
of such share or other moneys due in respect thereof.
30. The Board may from time to time at its discretion extend the time Board may
fixed for any call, and may extend such time as regards all or any extend time
of the shareholders fixed
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whom due to residence outside the Relevant Territory or other for call
cause the Board may deem entitled to any such extension but no
shareholder shall be entitled to any such extension except as a
matter of grace and favour.
31. If the sum payable in respect of any call or instalments is not Interest on
paid on or before the day appointed for payment thereof, the unpaid calls
person or persons from whom the sum is due shall pay interest on
the same at such rate not exceeding twenty per cent. per annum as
the Board shall fix from the day appointed for the payment thereof
to the time of the actual payment, but the Board may waive payment
of such interest wholly or in part.
32. No shareholder shall be entitled to receive any dividend or bonus Suspension of
or to be present and vote (save as proxy for another shareholder) privileges
at any general meeting, either personally, or (save as proxy for while call
another shareholder) by proxy or by a duly authorised corporate unpaid
representative, or be reckoned in a quorum, or to exercise any
other privilege as a shareholder until all calls or instalments
due from him to the Company, whether alone or jointly with any
other person, together with interest and expenses (if any) shall
have been paid.
33. On the trial or hearing of any action or other proceedings for the Evidence in
recovery of any money due for any call, it shall be sufficient to action for
prove that the name of the shareholder sued is entered in the call
register as the holder, or one of the holders, of the shares in
respect of which such debt accrued; that the resolution of the
Board making the call has been duly recorded in the minute book of
the Board; and that notice of such call was duly given to the
shareholder sued, in pursuance of these Bye-Laws; and it shall not
be necessary to prove the appointment of the Board who made such
call, nor any other matters whatsoever, but the proof of the
matters aforesaid shall be conclusive evidence of the debt.
34. Any sum which by the terms of allotment of a share is made payable Sums payable
upon allotment or at any fixed date, whether on account of the on allotment
nominal value of the share and/or by way of premium, shall for all deemed a call
purposes of these Bye-Laws be deemed to be a call duly made,
notified, and payable on the date fixed for payment, and in case Shares may be
of non-payment all the relevant provisions of these Bye-Laws as to issued subject
payment of interest and expenses, forfeiture and the like, shall to different
apply as if such sums had become payable by virtue of a call duly conditions
made and notified. The Board
-15-
may on the issue of shares differentiate between the allottees or as to calls,
holders as to the amount of calls to be paid and the time of etc.
payment.
35. The Board may, if it thinks fit, receive from any shareholder Payment of
willing to advance the same, and either in money or money's worth, calls in
all or any part of the money uncalled and unpaid or instalments advance
payable upon any shares held by him, and in respect of all or any
of the moneys so advanced the Company may pay interest at such
rate (if any) not exceeding twenty per cent. per annum as the
Board may decide but a payment in advance of a call shall not
entitle the shareholder to receive any dividend or to exercise any
other rights or privileges as a shareholder in respect of the
share or the due portion of the shares upon which payment has been
advanced by such shareholder before it is called up. The Board may
at any time repay the amount so advanced upon giving to such
shareholder not less than one month's notice in writing of their
intention in that behalf, unless before the expiration of such
notice the amount so advanced shall have been called up on the
shares in respect of which it was advanced.
TRANSFER OF SHARES
36. Subject to the Companies Act, all transfers of shares may be Form of
effected by transfer in writing in the usual or common form or in transfer
such other form as the Board may accept and may be under hand or
by means of mechanically imprinted signatures or such other manner
as the Board may from time to time approve.
37. The instrument of transfer of any share shall be executed by or on Execution of
behalf of the transferor and by or on behalf of the transferee transfer
provided that the Board may dispense with the execution of the
instrument of transfer by the transferee in any case in which it
thinks fit, in its absolute discretion, to do so. The transferor
shall be deemed to remain the holder of the share until the name
of the transferee is entered in the register in respect thereof.
Nothing in these Bye-Laws shall preclude the Board from
recognising a renunciation of the allotment or provisional
allotment of any share by the allottee in favour of some other
person.
38. (A) The Board may, in its absolute discretion, at any time and Shares
from time to time transfer any share upon the Principal registered on
Register to any branch register or any share on any branch principal
-16-
register to the Principal Register or any other branch register,
register. branch
register, etc.
(B) Unless the Board otherwise agrees (which agreement may be on
such terms and subject to such conditions as the Board in
its absolute discretion may from time to time stipulate, and
which agreement it shall, without giving any reason
therefor, be entitled in its absolute discretion to give or
withhold) no shares on the Principal Register shall be
transferred to any branch register nor shall shares on any
branch register be transferred to the Principal Register and
all transfers and other documents of title shall be lodged
for registration, and registered, in the case of any shares
on a branch register, at the relevant Registration Office,
and, in the case of any shares on the Principal Register, at
the Transfer Office. Unless the Board otherwise agrees, all
transfers and other documents of title shall be lodged for
registration with, and registered at, the relevant
Registration Office.
(C) Notwithstanding anything contained in this Bye-Law, the
Company shall as soon as practicable and on a regular basis
record in the Principal Register all transfers of shares
effected on any branch register and shall at all times
maintain the Principal Register in all respects in
accordance with the Companies Act.
39. The Board may, in its absolute discretion, and without assigning Board may
any reason, refuse to register a transfer of any share (not being refuse to
a fully paid up share) to a person of whom it does not approve or register a
any share issued under any share option scheme for employees upon transfer
which a restriction on transfer imposed thereby still subsists,
and it may also refuse to register a transfer of any share
(whether fully paid up or not) to more than four joint holders or
a transfer of any shares (not being a fully paid up share) on
which the Company has a lien.
40. The Board may also decline to recognise any instrument of transfer Requirements
unless:- as to transfer
(i) such sum, if any, (not exceeding, in the case of any share
capital listed on a stock exchange in the Relevant
Territory, HK$2.50 or such greater sum as such stock
exchange may from time to time permit, and, in the case of
any other capital, such sum in such currency
-17-
as the Board may from time to time determine to be
reasonable in the territory in which the relevant register
is situate, or otherwise such sum as the Company may by
Ordinary Resolution determine) as the Board shall from time
to time determine is paid to the Company in respect thereof
has been paid;
(ii) the instrument of transfer is lodged at the relevant
Registration Office or, as the case may be, the Transfer
Office accompanied by the certificate of the shares to which
it relates, and such other evidence as the Board may
reasonably require to show the right of the transferor to
make the transfer (and, if the instrument of transfer is
executed by some other person on his behalf, the authority
of that person so to do);
(iii) the instrument of transfer is in respect of only one class
of share;
(iv) the shares concerned are free of any lien in favour of the
Company;
(v) if applicable, the instrument of transfer is properly
stamped; and
(vi) where applicable, the permission of the Bermuda Monetary
Authority with respect thereto has been obtained.
41. No transfer of any shares (not being a fully paid up share) shall No transfer to
be made to an infant or to a person of unsound mind or under other an infant
legal disability.
42. If the Board shall refuse to register a transfer of any share, it Notice of
shall, within two months after the date on which the transfer was refusal
lodged with the Company, send to each of the transferor and the
transferee notice of such refusal.
43. Upon every transfer of shares the certificate held by the Certificate to
transferor shall be given up to be cancelled, and shall forthwith be given up on
be cancelled accordingly, and a new certificate shall be issued transfer
without charge to the transferee in respect of the shares
transferred to him, and if any of the shares included in the
certificate so given up shall be retained by the transferor a new
certificate in respect thereof shall be issued to him without
charge. The Company shall also retain the instrument of transfer.
44. The registration of transfers may be suspended and the register When transfer
closed on giving notice by
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advertisement in an appointed newspaper at such times and for such books and
periods as the Board may from time to time determine and either register may
generally or in respect of any class of shares. The register shall be closed
not be closed for more than thirty days in any year.
TRANSMISSION OF SHARES
45. In the case of the death of a shareholder, the survivor or Deaths of
survivors where the deceased was a joint holder, and the legal registered
personal representatives of the deceased where he was a sole or holder or of
only surviving holder, shall be the only persons recognised by the joint holder
Company as having any title to his interest in the shares; but of shares
nothing herein contained shall release the estate of a deceased
holder (whether sole or joint) from any liability in respect of
any share solely or jointly held by him.
46. Any person becoming entitled to a share in consequence of the Registration
death or bankruptcy or winding-up of a shareholder may, upon such of personal
evidence as to his title being produced as may from time to time representatives
be required by the Board, and subject as hereinafter provided, and trustees
elect either to be registered himself as holder of the share or to in bankruptcy
have some person nominated by him registered as the transferee
thereof.
47. If the person becoming entitled to a share pursuant to Bye-Law 46 Notice of
shall elect to be registered himself, as the holder of such share election to be
he shall deliver or send to the Company a notice in writing signed registered
by him at (unless the Board otherwise agrees) the Registration and
Office, stating that he so elects. If he shall elect to have his registration
nominee registered, he shall testify his election by executing a of nominee
transfer of such shares to his nominee. All the limitations,
restrictions and provisions of these presents relating to the
right to transfer and the registration of transfers of shares
shall be applicable to any such notice or transfer as aforesaid as
if the death, bankruptcy or winding-up of the shareholder had not
occurred and the notice or transfer were a transfer executed by
such shareholder.
48. A person becoming entitled to a share by reason of the death, Retention of
bankruptcy or winding-up of the holder shall be entitled to the dividends,
same dividends and other advantages to which he would be entitled etc. until
if he were the registered holder of the share. However, the Board transfer or
may, if it thinks fit, withhold the payment of any dividend transmission
payable or other advantages in respect of such share until such of shares of
person shall become the registered holder of the share or shall
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have effectually transferred such share, but, subject to the a deceased or
requirements of Bye-Law 77 being met, such a person may vote at bankrupt
general meetings of the Company. shareholder
FORFEITURE OF SHARES
49. If a shareholder fails to pay any call or instalment of a call on If call or
the day appointed for payment thereof, the Board may, at any time instalment not
thereafter during such time as any part of the call or instalment paid notice
remains unpaid, without prejudice to the provisions of Bye-Law 32, may be given
serve a notice on him requiring payment of so much of the call or
instalment as is unpaid, together with any interest which may have
accrued and which may thereafter accrue up to the date of actual
payment.
50. The notice shall name a further day (not earlier than the Content of
expiration of fourteen days from the date of the notice) on or notice of call
before which the payment required by the notice is to be made, and
it shall also name the place where payment is to be made, such
place being either the Registered Office or a Registration Office.
The notice shall also state that, in the event of non-payment at
or before the time appointed, the shares in respect of which the
call was made will be liable to be forfeited.
51. If the requirements of any such notice as aforesaid are not If notice not
complied with, any share in respect of which the notice has been complied with
given may at any time thereafter, before the payment required by shares may be
the notice has been made, be forfeited by a resolution of the forfeited
Board to that effect. Such forfeiture shall include all dividends
and bonuses declared in respect of the forfeited share and not
actually paid before the forfeiture. The Directors may accept the
surrender of any shares liable to be forfeited hereunder and in
such cases references in these Bye-Laws to forfeiture shall
include surrender.
52. Any share so forfeited shall be deemed to be the property of the Forfeited
Company, and may be sold or otherwise disposed of on such terms shares to
and in such manner as the Board thinks fit and at any time before become
a sale or disposition the forfeiture may be cancelled on such property of
terms as the Board thinks fit. Company
53. A person whose shares have been forfeited shall cease to be a Arrears to be
shareholder in respect of the forfeited shares, but shall, paid
notwithstanding, remain liable to pay to the Company all moneys notwithstanding
which, at the date of forfeiture, were payable by him to the forfeiture
Company in respect of the forfeited
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shares, together with (if the Board shall in its discretion so
require) interest thereon from the date of forfeiture until the
date of actual payment at such rate not exceeding twenty per cent.
per annum as the Board may prescribe, and the Board may enforce
the payment thereof if it thinks fit, and without any deduction or
allowance for the value of the shares at the date of forfeiture,
but his liability shall cease if and when the Company shall have
received payment in full of all such moneys in respect of the
shares. For the purposes of this Bye-Law any sum which by the
terms of issue of a share, is payable thereon at a fixed time
which is subsequent to the date of forfeiture, whether on account
of the nominal value of the share or by way of premium, shall
notwithstanding that such time has not yet arrived be deemed to be
payable at the date of forfeiture, and the same shall become due
and payable immediately upon the forfeiture, but interest thereon
shall only be payable in respect of any period between the said
fixed time and the date of actual payment.
54. A statutory declaration in writing that the declarant is a Evidence of
Director or the Secretary of the Company, and that a share in the forfeiture
Company has been duly forfeited or surrendered on a date stated in and transfer
the declaration, shall be conclusive evidence of the facts therein of forfeited
stated as against all persons claiming to be entitled to the share
share. The Company may receive the consideration, if any, given
for the share on any sale or disposition thereof and may execute a
transfer of the share in favour of the person to whom the share is
sold or disposed of and he shall thereupon be registered as the
holder of the share, and shall not be bound to see to the
application of the purchase money, if any, nor shall his title to
the share be affected by any irregularity or invalidity in the
proceedings in reference to the forfeiture, sale or disposal of
the share.
55. When any share shall have been forfeited, notice of the forfeiture Notice after
shall be given to the shareholder in whose name it stood forfeiture
immediately prior to the forfeiture, and an entry of the
forfeiture, with the date thereof, shall forthwith be made in the
register, but no forfeiture shall be in any manner invalidated by
any omission or neglect to give such notice or make any such
entry.
56. Notwithstanding any such forfeiture as aforesaid the Board may at Power to
any time, before any shares so forfeited shall have been sold, redeem
re-allotted or forfeited
-21-
otherwise disposed of, cancel the forfeiture on such terms as the shares
Board thinks fit or permit the shares so forfeited to be bought
back or redeemed upon the terms of payment of all calls and
interest due upon and expenses incurred in respect of the shares,
and upon such further terms (if any) as it thinks fit.
57. The forfeiture of a share shall not prejudice the right of the Forfeiture not
Company to any call already made or instalment payment thereon. to prejudice
Company's
right to call
or instalment
payment
58. (A) The provisions of these Bye-Laws as to forfeiture shall Forfeiture for
apply in the case of non-payment of any sum which, by terms non-payment of
of issue of a share, becomes payable at a fixed time, any sum due on
whether on account of the nominal value of the share or by shares
way of premium, as if the same had been payable by virtue of
a call duly made and notified.
(B) In the event of a forfeiture of shares the shareholder shall
be bound to deliver and shall forthwith deliver to the
Company the certificate or certificates held by him for the
shares so forfeited and in any event the certificates
representing shares so forfeited shall be void and of no
further effect.
ALTERATION OF CAPITAL
59. (A) The Company may from time to time by Ordinary Resolution:- Increase in
capital,
(i) increase its capital as provided by Bye-Law 7; consolidation
and division
(ii) consolidate or divide all or any of its share capital of capital
into shares of larger amount than its existing shares; and
and on any consolidation of fully paid shares into sub-division,
shares of larger amount, the Board may settle any cancellation
difficulty which may arise as it thinks expedient and of shares and
in particular (but without prejudice to the generality re-
of the foregoing) may as between the holders of shares denominnation
to be consolidated determine which particular shares etc.
are to be consolidated into a consolidated share, and
if it shall
-22-
happen that any person shall become entitled to
fractions of a consolidated share or shares, such
fractions may be sold by some person appointed by the
Board for that purpose and the person so appointed may
transfer the shares so sold to the purchaser thereof
and the validity of such transfer shall not be
questioned, and so that the net proceeds of such sale
(after deduction of the expenses of such sale) may
either be distributed among the persons who would
otherwise be entitled to a fraction or fractions of a
consolidated share or shares rateably in accordance
with their rights and interest or may be paid to the
Company for the Company's benefit;
(iii) divide its shares into several classes and attach
thereto respectively any preferential, deferred,
qualified or special rights, privileges or conditions;
(iv) sub-divide its shares or any of them into shares of
smaller amount than is fixed by the Memorandum of
Association, subject nevertheless to the provisions of
the Companies Act, and so that the resolution whereby
any share is sub-divided may determine that, as
between the holders of the shares resulting from such
sub-division, one or more of the shares may have any
such preferred or other special rights over, or may
have such deferred rights or be subject to any such
restrictions as compared with the others as the
Company has power to attach to unissued or new shares;
(v) cancel any shares which at the date of the passing of
the resolution have not been taken or agreed to be
taken by any person, and diminish the amount of its
share capital by the amount of the shares so
cancelled;
(vi) make provision for the issue and allotment of shares
which do not carry any voting rights; and
(vii) change the currency denomination of its share capital.
(B) The Company may by Special Resolution reduce its share Reduction of
capital, any capital redemption reserve fund or any share capital
premium account or
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other undistributable reserve in any manner authorised and
subject to any conditions prescribed by law.
GENERAL MEETINGS
60. (A) The Company shall in each year hold a general meeting as its When annual
annual general meeting in addition to any other meeting in general
that year and shall specify the meeting as such in the meeting to be
notice calling it; and not more than fifteen months shall held
elapse between the date of one annual general meeting of the
Company and that of the next. The annual general meeting
shall be held in the Relevant Territory or elsewhere as may
be determined by the Board and at such time and place as the
Board shall appoint. A meeting of the shareholders or any
class thereof may be held by means of such telephone,
electronic or other communication facilities as permit all
persons participating in the meeting to communicate with
each other simultaneously and instantaneously, and
participation in such a meeting shall constitute presence in
person at such meeting.
(B) (i) Except in the case of the removal of auditors or Written
Directors, anything which may be done by Ordinary Resolutions of
Resolution or Special Resolution in general meeting Shareholders
may be done by resolution in writing, signed by the
required majority of the shareholders or any class
thereof 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 Act) by
its representative on behalf of such shareholder,
being the required majority of the shareholders of the
Company or any class thereof who at the date of the
notice 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.
(ii) Notice of any resolution in writing to be made under
this Bye-Law shall be given, and a copy of the
resolution shall be circulated, in the same manner as
that required for a notice of a general meeting of the
Company at which the resolution could have been
considered, except that the length of the period of
notice shall
-24-
not apply.
(iii) The accidental omission to give notice of, or to
circulate a copy of, a resolution in writing to be
made under this Bye-Law, or the non-receipt of such
notice or copy by, any person entitled to receive such
notice or copy shall not invalidate the passing of the
resolution.
(iv) For the purposes of this Bye-Law, the date of the
resolution in writing is the date when the resolution
is signed by, or on behalf of, the shareholder who
establishes the majority of votes required for the
passing of the resolution and any reference in any
enactment to the date of passing of a resolution is,
in relation to a resolution in writing made in
accordance with this Bye-Law, a reference to such
date.
(v) A resolution in writing made in accordance with this
Bye-Law is as valid as if it had been passed by the
Company in general meeting or, if applicable, by a
meeting of the relevant class of shareholders of the
Company, as the case may be. A resolution in writing
made in accordance with this Bye-Law shall constitute
minutes for the purposes of the Companies Acts and
these Bye-Laws.
61. All general meetings other than annual general meetings shall be Special
called special general meetings. general
meeting
62. The Board may, whenever it thinks fit, convene a special general Convening of
meeting, and special general meetings shall also be convened on special
requisition, as provided by the Companies Act, and, in default, general
may be convened by the requisitionists. meeting
63. An annual general meeting and a meeting called for the passing of Notice of
a Special Resolution shall be called by at least twenty-one days' meetings
notice in writing, and a meeting of the Company other than an
annual general meeting or a meeting for the passing of a Special
Resolution shall be called by at least fourteen days' notice in
writing. The notice shall be exclusive of the day on which it is
served or deemed to be served and of the day for which it is
given, and shall specify the place, the day and the hour of
meeting and, in case of special business,
-25-
the general nature of that business, and shall be given, in the
manner hereinafter mentioned or in such other manner, if any, as
may be prescribed by the Company in general meeting, to such
persons as are, under these Bye-Laws, entitled to receive such
notices from the Company, provided that, subject to the provisions
of the Companies Act, a meeting of the Company shall
notwithstanding that it is called by shorter notice than that
specified in this Bye-Law be deemed to have been duly called if it
is so agreed:-
(i) in the case of a meeting called as the annual general
meeting, by all the shareholders entitled to attend and vote
thereat; and
(ii) in the case of any other meeting, by a majority in number of
the shareholders having a right to attend and vote at the
meeting, being a majority together holding not less than
ninety-five per cent. in nominal value of the shares giving
that right.
64. (A) The accidental omission to give any notice to, or the Omission to
non-receipt of any notice by, any person entitled to receive give notice
notice shall not invalidate any resolution passed or any
proceedings at any such meeting.
(B) In the case where instruments of proxy are sent out with any
notice, the accidental omission to send such instrument of
proxy to, or the non-receipt of such instrument of proxy by,
any person entitled to receive notice of the relevant
meeting shall not invalidate any resolution passed or any
proceeding at any such meeting.
PROCEEDINGS AT GENERAL MEETINGS
65. All business shall be deemed special that is transacted at a Special
special general meeting, and also all business that is transacted business,
at an annual general meeting with the exception of sanctioning business of
dividends, the reading, considering and adopting of the accounts annual general
and balance sheet and the reports of the Directors and Auditors meeting
and other documents required to be annexed to the balance sheet,
the election of Directors and appointment of Auditors and other
officers in the place of those retiring, the fixing of the
remuneration of the Auditors, and the voting of ordinary or extra
or special remuneration to the Directors.
-26-
66. For all purposes the quorum for a general meeting shall be two Quorum
shareholders present in person or by a duly authorised corporate
representative or by proxy and entitled to vote. No business shall
be transacted at any general meeting unless the requisite quorum
shall be present at the commencement of the meeting.
67. If within fifteen minutes from the time appointed for the meeting When if quorum
a quorum is not present, the meeting, if convened upon the not present
requisition of shareholders, shall be dissolved, but in any other meeting to be
case it shall stand adjourned to the same day in the next week and dissolved and
at such time and place as shall be decided by the Board. when to be
adjourned
68. The Chairman (if any) of the Board or, if he is absent or declines Chairman of
to take the chair at such meeting, the Deputy Chairman (if any) general
shall take the chair at every general meeting, or, if there be no meeting
such Chairman or Deputy Chairman, or, if at any general meeting
neither of such Chairman or Deputy Chairman is present within
fifteen minutes after the time appointed for holding such meeting,
or both such persons decline to take the chair at such meeting,
the Directors present shall choose one of their number as
Chairman, and if no Director be present or if all the Directors
present decline to take the chair or if the Chairman chosen shall
retire from the chair, then the shareholders present shall choose
one of their number to be Chairman.
69. The Chairman may, with the consent of any general meeting at which Power to
a quorum is present, and shall, if so directed by the meeting, adjourn
adjourn any meeting from time to time and from place to place as general
the meeting shall determine. Whenever a meeting is adjourned for meeting,
fourteen days or more, at least seven clear days' notice, business of
specifying the place, the day and the hour of the adjourned adjourned
meeting shall be given in the same manner as in the case of an meeting
original meeting but it shall not be necessary to specify in such
notice the nature of the business to be transacted at the
adjourned meeting. Save as aforesaid, no shareholder shall be
entitled to any notice of an adjournment or of the business to be
transacted at an adjourned meeting. No business shall be
transacted at an adjourned meeting other than the business which
might have been transacted at the meeting from which the
adjournment took place.
70. At any general meeting a resolution put to the vote What is to
-27-
of the meeting shall be decided on a show of hands unless a poll be evidence of
is required under the Listing Rules or demanded (before or at the the passing
declaration of the results of the show of hands in respect of the of a
relevant resolution or on the withdrawal of any other demand for a resolution
poll):- where poll
not demanded
(i) by the Chairman of the meeting; or
(ii) by at least three shareholders present in person or by a
duly authorised corporate representative or by proxy for the
time being entitled to vote at the meeting; or
(iii) by any shareholder or shareholders present in person or by a
duly authorised corporate representative or by proxy and
representing not less than one-tenth of the total voting
rights of all the shareholders having the right to attend
and vote at the meeting; or
(iv) by any shareholder or shareholders present in person or by a
duly authorised corporate representative or by proxy having
the right to attend and vote at the meeting, and in respect
of whose shares, sums have been paid up in the aggregate
equal to not less than one-tenth of the total sum paid up on
all the shares having that right.
Unless a poll be so required or demanded and, in the later case,
the demand is not withdrawn, a declaration by the Chairman that a
resolution has on a show of hands been carried or carried
unanimously, or by a particular majority, or lost, and an entry to
that effect in the book containing the minutes of the proceedings
of the Company shall be conclusive evidence of the fact without
proof of the number or proportion of the votes recorded in favour
or against such resolution.
71. If a poll is demanded as aforesaid, it shall (subject as provided Poll
in Bye-Law 72) be taken in such manner (including the use of
ballot or voting papers or tickets) and at such time and place,
not being more than thirty days from the date of the meeting or
adjourned meeting at which the poll was demanded, as the Chairman
directs. No notice need be given of a poll not taken immediately.
The result of the poll shall be deemed to be the resolution of the
meeting at which the poll was demanded. The demand for a poll may
be withdrawn, with the consent of the Chairman, at any time before
the close of the meeting at which the poll was demanded or the
taking hands of the poll, whichever is the earlier.
-28-
72. Any poll duly demanded on the election of a Chairman of a meeting In what case
or on any question of adjournment shall be taken at the meeting poll taken
and without adjournment. without
adjournment
73. In the case of an equality of votes, whether on a show of hands or Chairman to
on a poll, the Chairman of the meeting at which the show of hands have casting
takes place or at which the poll is demanded, shall be entitled to vote
a second or casting vote. In case of any dispute as to the
admission or rejection of any vote the Chairman shall determine
the same, and such determination shall be final and conclusive.
74. The demand for a poll shall not prevent the continuance of a Business may
meeting for the transaction of any business other than the proceed
question on which a poll has been demanded. notwithstanding
demand for
poll
75. For the purposes of section 106 of the Companies Act, a Special Approval of
Resolution of the Company, and of any relevant class of amalgamation
shareholders, shall be required to approve any amalgamation agreement
agreement as referred to in that section.
VOTES OF SHAREHOLDERS
76. (A) Subject to any special rights, privileges or restrictions as Votes of
to voting for the time being attached to any class or shareholders
classes of shares, at any general meeting on a show of hands
every shareholder who is present in person or by a duly
authorised corporate representative shall have one vote, and
on a poll every shareholder present in person or by a duly
authorised corporate representative or by proxy, shall have
one vote for every share of which he is the holder which is
fully paid up or credited as fully paid up (but so that no
amount paid up or credited as paid up on a share in advance
of calls or instalments shall be treated for the purposes of
this Bye-Law as paid up on a share). On a poll a shareholder
entitled to more than one vote need not use all his votes or
cast his votes in the same way.
(B) Where any shareholder is, under the Listing Rules, required
to abstain from voting on any particular resolution or
restricted to voting
-29-
for or against any particular resolution, any votes cast by
or on behalf of such shareholder in contravention of such
requirement or restriction shall not be counted.
77. Any person entitled under Bye-Law 46 to be registered as the Votes in
holder of any shares may vote at any general meeting in respect respect of
thereof in the same manner as if he were the registered holder of deceased and
such shares, provided that at least 48 hours before the time of bankrupt
the holding of the meeting or adjourned meeting (as the case may shareholders
be) at which he proposes to vote, he shall satisfy the Board of
his right to be registered as the holder of such shares or the
Board shall have previously admitted his right to vote at such
meeting in respect thereof.
78. Where there are joint registered holders of any share, any one of Joint holders
such persons may vote at any meeting, either personally or by
proxy, in respect of such share as if he were solely entitled
thereto; but if more than one of such joint holders be present at
any meeting personally or by proxy, that one of the said persons
so present whose name stands first on the register in respect of
such share shall alone be entitled to vote in respect thereof.
Several executors or administrators of a deceased shareholder in
whose name any share stands shall for the purposes of this Bye-Law
be deemed joint holders thereof.
79. A shareholder of unsound mind or in respect of whom an order has Votes of
been made by any court having jurisdiction in lunacy may vote, shareholder
whether on a show of hands or on a poll, by his committee, of unsound
receiver, curator bonis or other person in the nature of a mind
committee, receiver or curator bonis appointed by that court, and
any such committee, receiver, curator bonis or other person may on
a poll vote by proxy. Evidence to the satisfaction of the Board of
the authority of the person claiming to exercise the right to vote
shall be delivered to such place or one of such places (if any) as
is specified in accordance with these Bye-Laws for the deposit of
instruments of proxy or, if no place is specified, at the
Registration Office.
80. (A) Save as expressly provided in these Bye-Laws, no person Qualification
other than a shareholder duly registered and who shall have for voting
paid everything for the time being due from him payable to
the Company in respect of his shares shall be entitled to be
present or to vote (save as proxy for another shareholder)
either personally or by proxy or to be reckoned in a
-30-
quorum (save as proxy for another shareholder), at any
general meeting.
(B) No objection shall be raised to the qualification of any Objections to
voter except at the meeting or adjourned meeting at which votes
the vote objected to is given or tendered, and every vote
not disallowed at such meeting shall be valid for all
purposes. Any such objection made in due time shall be
referred to the Chairman, whose decision shall be final and
conclusive.
81. Any shareholder of the Company entitled to attend and vote at a Proxies
meeting of the Company or a meeting of the holders of any class of
shares in the Company shall be entitled to appoint another person
as his proxy to attend and vote instead of him. On a vote on a
show of hands, only a member present in person or by a duly
authorised corporate representative may vote. On a poll votes may
be given either personally or by a duly authorised corporate
representative or by proxy. A shareholder who is the holder of two
or more shares may appoint more than one proxy to attend on the
same occasion. A proxy need not be a shareholder. In addition, a
proxy or proxies representing either an individual shareholder or
a shareholder which is a corporation, shall be entitled to
exercise the same powers on behalf of the shareholder which he or
they represent as such shareholder could exercise, but, not
withstanding the generality of the foregoing shall not have the
right to vote individually on a show of hands.
82. The instrument appointing a proxy shall be in writing under the Instrument
hand of the appointor or of his attorney duly authorised in appointing
writing, or if the appointor is a corporation, either under seal proxy to be
or under the hand of an officer or attorney duly authorised. in writing
83. The instrument appointing a proxy and the power of attorney or Appointment
other authority, if any, under which it is signed or a notarially of proxy must
certified copy of that power or authority shall be deposited at be deposited
such place or one of such places (if any) as is specified in the
notice of meeting or in the instrument of proxy issued by the
Company (or, if no place is specified, at the Registration Office)
not less than forty-eight hours before the time for holding the
meeting or adjourned meeting or poll (as the case may be) at which
the person named in such instrument proposes to vote, and in
default the instrument of proxy shall not be
-31-
treated as valid. No instrument appointing a proxy shall be valid
after the expiration of twelve months from the date of its
execution, except at an adjourned meeting or on a poll demanded at
a meeting or an adjourned meeting in a case where the meeting was
originally held within twelve months from such date. Delivery of
an instrument appointing a proxy shall not preclude a shareholder
from attending and voting in person at the meeting or upon the
poll concerned and, in such event, the instrument appointing a
proxy shall be deemed to be revoked.
84. Every instrument of proxy, whether for a specified meeting or Form of proxy
otherwise, shall be in such form as the Board may from time to
time approve.
85. The instrument appointing a proxy to vote at a general meeting Authority
shall: (i) be deemed to confer authority upon the proxy to demand under
or join in demanding a poll and to vote on any resolution (or instrument
amendment thereto) put to the meeting for which it is given as the appointing
proxy thinks fit. Provided that any form issued to a shareholder proxy
for use by him for appointing a proxy to attend and vote at a
special general meeting or at an annual general meeting at which
any business is to be transacted shall be such as to enable the
shareholder, according to his intentions, to instruct the proxy to
vote in favour of or against (or, in default of instructions, to
exercise his discretion in respect of) each resolution dealing
with any such business; and (ii) unless the contrary is stated
therein, be valid as well for any adjournment of the meeting as
for the meeting to which it relates.
86. A vote given in accordance with the terms an instrument of proxy When vote by
or power of attorney or by a duly authorised corporate proxy valid
representative of a corporation shall be valid notwithstanding the though
previous death or insanity of the principal or revocation of the authority
proxy or power of attorney or other authority under which the revoked
proxy was executed or the transfer of the share in respect of
which the proxy is given, provided that no intimation in writing
of such death, insanity, revocation or transfer as aforesaid shall
have been received by the Company at its Registration Office, or
at such other place as is referred to in Bye-Law 83, at least two
hours before the commencement of the meeting or adjourned meeting
at which the proxy is used.
87. (A) Any corporation which is a shareholder of the Company may,
by resolution of its directors or other governing body or by
power of attorney, authorise such person as it thinks fit to
act
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as its corporate representative at any meeting of the
Company or of any class of shareholders of the Company, and
the person so authorised shall be entitled to exercise the
same powers on behalf of the corporation which he represents
as that corporation could exercise if it were an individual
shareholder of the Company. References in these Bye-Laws to
a shareholder present in person at a meeting shall, unless
the context otherwise requires, include a corporation which
is a shareholder represented at the meeting by such duly
authorised corporate representative or by one or more
proxies. Nothing contained in this Bye-law shall prevent a
corporation which is a shareholder of the Company from
appointing one or more proxies to represent it pursuant to
Bye-law 81.
(B) If a Clearing House (or its nominee) is a shareholder of the
Company, it may appoint such person or persons as it thinks
fit to act as its proxy or proxies or as its corporate
representative or representatives, to the extent permitted
by the Companies Act, at any meeting of the Company or at
any meeting of any class of shareholders of the Company
provided that, if more than one proxy or, corporate
representative is so appointed, the appointment shall
specify the number and class of shares in respect of which
each such proxy or corporate representative is so appointed.
A person so appointed under the provisions of this Bye-law
shall be entitled to exercise the same powers on behalf of
the Clearing House (or its nominee) which he represents as
that Clearing House (or its nominee) could exercise as if it
were an individual shareholder including the right to vote
individually on a show of hands notwithstanding the
provisions of Bye-laws 76 and 81;
REGISTERED OFFICE
88. The Registered Office shall be at such place in Bermuda as the Registered
Board shall from time to time appoint. office
BOARD OF DIRECTORS
89. The number of Directors shall not be less than two. The Company Constitution
shall keep at the Registered Office a register of its directors of Board
and officers in accordance with the Statutes.
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90. The Company in general meeting may by Ordinary Resolution elect a Alternate
person or persons qualified to be Directors to act as Directors in Directors
the alternative to any of the Directors of the Company or may
authorise the Board to appoint such alternate Directors. Any
alternate Director may be removed by the Company in general
meeting by Ordinary Resolution and, if appointed by the Board, may
be removed by the Board and, subject thereto, the office of
alternate Director shall continue until the next annual election
of Directors in accordance with Bye-Law 99 or, if earlier, the
date on which the relevant Director ceases to be a Director. An
alternate Director may also be a Director in his own right and may
act as alternate to more than one Director.
91. (A) A Director may at any time, by notice in writing signed by Rights of
him delivered to the Registered Office or to the Head Office alternate
or at a meeting of the Board, appoint any person (including Directors
another Director) to act as alternate Director in his place
during his absence and may in like manner at any time
determine such appointment. If such person is not another
Director such appointment unless previously approved by the
Board shall have effect only upon and subject to being so
approved. The appointment of an alternate Director shall
determine on the happening of any event which, were he a
Director, would cause him to vacate such office or if his
appointor ceases to be a Director.
(B) An alternate Director shall be entitled to contract and be
interested in and benefit from contracts or arrangements or
transactions and to be repaid expenses and to be indemnified
to the same extent mutatis mutandis as if he were a
Director, but he shall not be entitled to receive from the
Company in respect of his appointment as alternate Director
any remuneration except only such part (if any) of the
ordinary remuneration otherwise payable to his appointor as
such appointor may by notice in writing to the Company from
time to time direct.
(C) An alternate Director shall, if his appointor so requests,
be entitled to receive notices of meetings of the Board or
committees of the Board to the same extent as, but in lieu
of, the Director appointing him and shall be entitled to
such extent to attend and vote as a Director at any such
meeting at which the Director appointing him is not
personally
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present and generally at such meeting to exercise and
discharge all the functions, powers and duties of his
appointor as a Director and for the purposes of the
proceedings at such meeting the provisions of these Bye-Laws
shall apply as if he were a Director.
(D) Every person acting as an alternate Director shall (except
as regards power to appoint an alternate Director and
remuneration) be subject in all respects to the provisions
of these Bye-Laws relating to Directors and shall alone be
responsible to the Company for his acts and defaults and
shall not be deemed to be the agent of or for the Director
appointing him.
(E) Every person acting as an alternate Director shall have one
vote for each Director for whom he acts as alternate (in
addition to his own vote if he is also a Director). The
signature of an alternate Director to any resolution in
writing of the Board or a committee of the Board shall,
unless the notice of his appointment provides to the
contrary, be as effective as the signature of his appointor.
(F) No alternate Director shall by virtue of that position be a
director for the purposes of the Companies Act, but shall
nevertheless be subject to the provisions of the Companies
Act in so far as they relate to the duties and obligations
of directors (other than the obligations to hold any
qualifying share in the Company) when performing the
functions of a Director.
92. A Director or an alternate Director shall not be required to hold Attendance at
any qualification shares but shall nevertheless be entitled to general
attend and speak at all general meetings of the Company and all meetings
meetings of any class of shareholders of the Company.
93. The Directors shall be entitled to receive by way of remuneration Directors'
for their services as Directors such sum as shall from time to remuneration
time be determined by the Company in general meeting, such sum
(unless otherwise directed by the resolution by which it is voted)
to be divided amongst the Directors in such proportions and in
such manner as the Board may agree, or failing agreement, equally,
except that in such event any Director holding office for less
than the whole of the relevant period in respect of which the
remuneration is paid shall only rank in such division in
proportion to the time during such
-35-
period for which he has held office. The foregoing provisions
shall not apply to a Director who holds any salaried employment or
office in the Company except in the case of sums paid in respect
of Directors' fees.
94. The Directors shall also be entitled to be repaid all travelling, Directors'
hotel and other expenses reasonably incurred by them respectively expenses
in or about the performance of their duties as Directors,
including their expenses of travelling to and from board meetings,
committee meetings or general meetings or otherwise incurred
whilst engaged in the business of the Company or in the discharge
of their duties as Directors.
95. The Board may grant special remuneration to any Director who, Special
being called upon, shall perform any special or extra services to remuneration
or at the request of the Company. Such special remuneration may be
made payable to such Director in addition to or in substitution
for his ordinary remuneration as a Director, and may be made
payable by way of salary, commission or participation in profits
or otherwise as the Board may determine.
96. (A) Notwithstanding Bye-Laws 93, 94 and 95, the remuneration of Remuneration
an Executive Director or a Director appointed to any other of Executive
office in the management of the Company may from time to Directors, etc.
time be fixed by the Board and may be by way of salary,
commission, or participation in profits or otherwise or by
all or any of those modes and with such other benefits
(including pension and/or gratuity and/or other benefits on
retirement) and allowances as the Board may from time to
time decide. Such remuneration shall be in addition to his
ordinary remuneration as a Director.
(B) Payments to any Director or past Director of any sum by way Payments for
of compensation for loss of office or as consideration for compensation
or in connection with his retirement from office (not being for loss of
a payment to which the Director is contractually entitled) office
must be approved by the Company in general meeting.
97. (A) A Director shall vacate his office:-
When office of
(i) if he becomes bankrupt or has a receiving order made Director to be
against him or suspends payment or compounds with vacated
his creditors generally;
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(ii) if he becomes a lunatic or of unsound mind;
(iii) if he absents himself from the meetings of the Board
during a continuous period of six months, without
special leave of absence from the Board, and his
alternate Director (if any) shall not during such
period have attended in his stead, and the Board
passes a resolution that he has by reason of such
absence vacated his office;
(iv) if he becomes prohibited by law from acting as a
Director;
(v) if by notice in writing delivered to the Company at
its Registered Office or at the Head Office he resigns
his office;
(vi) if he shall be removed from office by an Ordinary
Resolution of the Company under Bye-Law 104.
(B) No Director shall be required to vacate office or be
ineligible for re-election or re-appointment as a Director,
and no person shall be ineligible for appointment as a
Director, by reason only of his having attained any
particular age.
98. (A) Subject to the Companies Act, a Director may hold any other Directors'
office or place of profit with the Company (except that of interests
Auditors) in conjunction with his office of Director for
such period and upon such terms as the Board may determine,
and may be paid such extra remuneration therefor (whether by
way of salary, commission, participation in profits or
otherwise) as the Board may determine, and such extra
remuneration shall be in addition to any remuneration
provided for, by or pursuant to any other Bye-Law.
(B) A Director may act by himself or his firm in a professional
capacity for the Company (otherwise than as Auditors) and he
or his firm shall be entitled to remuneration for
professional services as if he were not a Director.
(C) A Director may be or become a director or other officer of,
or otherwise interested in, any company promoted by the
Company or any other company in which the Company may be
-37-
interested, and shall not be liable to account to the
Company or the shareholders for any remuneration, profit or
other benefit received by him as a director or officer of or
from his interest in such other company. The Board may also
cause the voting power conferred by the shares in any other
company held or owned by the Company to be exercised in such
manner in all respects as it thinks fit, including the
exercise thereof in favour of any resolution appointing the
Directors or any of them to be directors or officers of such
other company, or voting or providing for the payment of
remuneration to the directors or officers of such other
company.
(D) A Director shall not vote or be counted in the quorum on any
resolution of the Board concerning his own appointment as
the holder of any office or place of profit with the Company
or any other company in which the Company is interested
(including the arrangement or variation of the terms
thereof, or the termination thereof).
(E) Where proposals are under consideration concerning the
appointment (including fixing or varying the terms of or
terminating the appointment) of two or more Directors to
offices or employments with the Company or any company in
which the Company is interested, such proposals shall be
divided and considered in relation to each Director
separately and in such case each of the Directors (if not
prohibited from voting under Bye-Law 98(H))shall be entitled
to vote (and be counted in the quorum) in respect of each
resolution except that concerning his own appointment.
(F) Subject to the Companies Act and to the next paragraph of
this Bye-Law, no Director or proposed or intended Director
shall be disqualified by his office from contracting with
the Company, either with regard to his tenure of any office
or place of profit or as vendor, purchaser or in any other
manner whatever, nor shall any such contract or any other
contract or arrangement in which any Director is in any way
interested be liable to be avoided, nor shall any Director
so contracting or being so interested be liable to account
to the Company or the shareholders for any remuneration,
profit or other benefits realised by any such contract or
arrangement, by reason only of such Director holding that
office or the fiduciary relationship thereby established.
-38-
(G) A Director who to his knowledge is in any way, whether
directly or indirectly, interested in a contract or
arrangement or proposed contract or arrangement with the
Company shall declare the nature of his interest at the
meeting of the Board at which the question of entering into
the contract or arrangement is first taken into
consideration, if he knows his interest then exists, or in
any other case at the first meeting of the Board after he
knows that he is or has become so interested. For the
purposes of this Bye-Law, a general notice to the Board by a
Director to the effect that (a) he is a shareholder of a
specified company or firm and is to be regarded as
interested in any contract or arrangement which may after
the date of the notice be made with that company or firm or
(b) he is to be regarded as interested in any contract or
arrangement which may after the date of the notice be made
with a specified person who is connected with him, shall be
deemed to be a sufficient declaration of interest under this
Bye-Law in relation to any such contract or arrangement;
provided that no such notice shall be effective unless
either it is given at a meeting of the Board or the Director
takes reasonable steps to secure that it is brought up and
read at the next Board meeting after it is given.
(H) A Director shall not be entitled to vote (nor be counted in
the quorum) on any resolution of the Board in respect of any
contract or arrangement or any other proposal in which he or
any of his associates has any material interest, and if he
shall do so, his vote shall not be counted (nor is he to be
counted in the quorum for the resolution), but this
prohibition shall not apply to any of the following matters
namely:-
(i) the giving of any security or indemnity either:-
(a) to the Director or his associate(s) in respect
of money lent or obligations incurred or
undertaken by him or any of them at the request
of or for the benefit of the Company or any of
its subsidiaries; or
(b) to a third party in respect of a debt or
obligation of the Company or any of its
subsidiaries for which the Director or his
associate(s) has himself/themselves assumed
-39-
responsibility in whole or in part and whether
alone or jointly under a guarantee or indemnity
or by the giving of security;
(ii) any proposal concerning an offer of shares or
debentures or other securities of or by the Company
or any other company which the Company may promote
or be interested in for subscription or purchase
where the Director or his associate(s) is/are or
is/are to be interested as a participant in the
underwriting or sub-underwiting of the offer;
(iii) any proposal concerning any other company in which
the Director or his associate(s) is/are interested
only, whether directly or indirectly, as an officer
or executive or shareholder or in which the Director
or his associate(s) is/are beneficially interested
in shares of that company provided that the Director
and any of his associates are not in aggregate
beneficially interested in 5 per cent. or more of
the issued shares of any class of such company (or
of any third company through which his interest or
that of his associate(s) is derived) or of the
voting rights;
(iv) any proposal or arrangement concerning the benefit
of employees of the Company or its subsidiaries
including:-
(a) the adoption, modification or operation of any
employees' share scheme or any share incentive
or share option scheme under which the Director
or his associate(s) may benefit; or
(b) the adoption, modification or operation of a
pension fund or retirement, death or disability
benefits scheme which relates both to Directors,
their associates and employees of the Company or
any of its subsidiaries and does not provide in
respect of any Director or his associate(s), as
such any privilege or advantage not generally
accorded to the class of persons to which such
scheme or fund relates; and
(v) any contract or arrangement in which the
-40-
Director or his associate(s) is/are interested in the
same manner as other holders of shares or debentures
or other securities of the Company by virtue only of
his/their interest in shares or debentures or other
securities of the Company.
(I) If any question shall arise at any meeting of the Board as
to the materiality of the interest of a Director (other than
the Chairman) or any of his associates or as to the
entitlement of any Director (other than such Chairman) to
vote and such question is not resolved by his voluntarily
agreeing to abstain from voting, such question shall be
referred to the Chairman and his ruling in relation to such
other Director shall be final and conclusive except in a
case where the nature or extent of the interest of the
Director or any of his associates as known to such Director
has not been fairly disclosed to the Board. If any question
as aforesaid shall arise in respect of the Chairman or any
of his associates such question shall be decided by a
resolution of the Board (for which purpose such Chairman
shall not be counted in the quorum and shall not vote
thereon) and such resolution shall be final and conclusive
except in a case where the nature or extent of the interest
of such Chairman or any of his associates as known to such
Chairman has not been fairly disclosed to the Board.
APPOINTMENT AND RETIREMENT OF DIRECTORS
99. Notwithstanding any other provisions in the Bye-Laws or other Rotation and
terms on which any Director may be appointed or engaged, at each retirement
annual general meeting one-third of the Directors for the time of Directors
being, or, if their number is not three or a multiple of three,
then the number nearest to one-third but not greater than
one-third (or in such other manner of rotation as may be required
by the Listing Rules), shall retire from office by rotation. The
Directors to retire in every year shall be those who have been
longest in office since their last election but as between persons
who became Directors on the same day shall (unless they otherwise
agree between themselves) be determined by lot. The retiring
Directors shall be eligible for re-election. The Company at any
general meeting at which any Directors retire may fill the vacated
offices.
100. If at any general meeting at which an election of Directors ought Retiring
to take place the places of the retiring Directors are not filled, Directors to
the retiring remain
-41-
Directors or such of them as have not had their places filled in office
shall be deemed to have been re-elected and shall, if willing, until
continue in office until the next annual general meeting and so on successors
from year to year until their places are filled, unless:- appointed
(i) it shall be determined at such meeting to reduce the
number of Directors; or
(ii) it is expressly resolved at such meeting not to fill up
such vacated offices; or
(iii) in any such case the resolution for re-election of a
Director is put to the meeting and lost; or
(iv) such Director has given notice in writing to the Company
that he is not willing to be re-elected.
101. The Company in general meeting shall from time to time fix and may Power of
from time to time by Ordinary Resolution increase or reduce the general
maximum and minimum number of Directors but so that the number of meeting to
Directors shall never be less than two. increase or
reduce number
of Directors
102. (A) The Company may from time to time in general meeting by Appointment
Ordinary Resolution elect any person to be a Director either of Directors
to fill a casual vacancy or as an addition to the Board. Any
Director so appointed shall hold office until the next
following general meeting of the Company (in the case of
filling a casual vacancy) or until the next following annual
general meeting of the Company (in the case of an addition
to the Board), and shall then be eligible for re-election at
the meeting. The Directors to retire at the annual general
meeting pursuant to this Bye-Law 102.(A) shall not be taken
into account in determining the Directors or the number of
Directors who are to retire by rotation at the annual
general meeting.
102. (B) The Board shall have power from time to time and at any time
to appoint any person as a Director either to fill a casual
vacancy or as an addition to the Board but so that the
number of Directors so appointed shall not exceed the
maximum number determined from time to time by the
shareholders in general meeting. Any
-42-
Director so appointed shall hold office until the next
following general meeting of the Company (in the case of
filling a casual vacancy) or until the next following annual
general meeting of the Company (in the case of an addition
to the Board), and shall then be eligible for re-election at
the meeting. The Directors to retire at the annual general
meeting pursuant to this Bye-Law 102.(B) shall not be taken
into account in determining the Directors or the number of
Directors who are to retire by rotation at the annual
general meeting.
103. No person, other than a retiring Director, shall, unless Notice of
recommended by the Board for election, be eligible for election to proposed
the office of Director at any general meeting, unless notice in Director to
writing of the intention to propose that person for election as a be given
Director, signed by a shareholder (other than the person to be
proposed for election as a Director) duly qualified to attend and
vote at the meeting for which such notice is given, and a notice
in writing signed by that person of his willingness to be elected
shall have been lodged at the Head Office or at the Registration
Office. The minimum length of the period during which such notices
are given shall be at least seven days and the period of lodgment
of such notices shall commence no earlier than the day after the
despatch of the notice of the general meeting appointed for such
election and end no later than seven days prior to the date of
such general meeting.
104. The Company may by Ordinary Resolution remove any Director Power to
(including an Executive Director) before the expiration of his remove
period of office notwithstanding anything in these Bye-Laws or in Director by
any agreement between the Company and such Director (but without Ordinary
prejudice to any claim which such Director may have for damages Resolution
for any breach of any contract between him and the Company) and
may elect another person in his stead. Any person so elected shall
hold office only until the next following general meeting of the
Company and shall then be eligible for re-election at such
meeting. If the Director is to retire at an annual general
meeting, he shall not be taken into account in determining the
Directors or the number of Directors who are to retire by rotation
at such annual general meeting.
BORROWING POWERS
105. The Board may from time to time at its discretion Power to
-43-
exercise all the powers of the Company to raise or borrow or to borrow
secure the payment of any sum or sums of money for the purposes of
the Company and to mortgage or charge its undertaking, property
and uncalled capital or any part thereof.
106. The Board may raise or secure the payment or repayment of such sum Conditions on
or sums in such manner and upon such terms and conditions in all which money
respects as it thinks fit and in particular by the issue of may be
debentures, debenture stock, bonds or other securities of the borrowed
Company, whether outright or as collateral security for any debt,
liability or obligation of the Company or of any third party.
107. Debentures, debenture stock, bonds and other securities may be Assignment of
made assignable free from any equities between the Company and the debentures
person to whom the same may be issued. etc.
108. Any debentures, debenture stock, bonds or other securities may be Special
issued at a discount (other than shares), premium or otherwise and privileges of
with any special privileges as to redemption, surrender, drawings, debentures
allotment of shares, attending and voting at general meetings of etc.
the Company, appointment of Directors and otherwise.
109. (A) The Board shall cause a proper register to be kept of all Register of
mortgages and charges specifically affecting the property of charges to be
the Company and shall duly comply with such provisions of kept
the Companies Act with regard to the registration of
mortgages and charges as may be specified or required.
(B) If the Company issues a series of debentures or debenture Register of
stock not transferable by delivery, the Board shall cause a debentures or
proper register to be kept of the holders of such debenture
debentures. stock
110. Where any uncalled capital of the Company is charged, all Mortgage of
persons taking any subsequent charge thereon shall take the same uncalled
subject to such prior charge, and shall not be entitled, by capital
notice to the shareholders or otherwise, to obtain priority over
such prior charge.
EXECUTIVE DIRECTORS, ETC.
111. The Board may from time to time appoint any one or more of its Powers to
body to the office of Executive Director and/or such other office appoint
in the management of the business of the Company as it may decide Executive
for such period and upon such terms as Directors,
etc.
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it thinks fit and upon such terms as to remuneration as it may
decide in accordance with Bye-Law 96.
112. Every Director appointed to an office under Bye-Law 111 hereof Removal of
shall, but without prejudice to any claim for damages for breach Executive
of any contract of service between himself and the Company, be Director, etc.
liable to be dismissed or removed therefrom by the Board.
113. A Director appointed to an office under Bye-Law 111 shall be Cessation of
subject to the same provisions as to rotation, resignation and appointment
removal as the other Directors of the Company, and he shall ipso
facto and immediately cease to hold such office if he shall cease
to hold the office of Director for any cause.
114. The Board may from time to time entrust to and confer upon any Powers may be
Executive Director all or any of the powers of the Board that it delegated
may think fit provided that the exercise of all powers by such
Director shall be subject to such regulations and restrictions as
the Board may from time to time make and impose, and the said
powers may at any time be withdrawn, revoked or varied, but no
person dealing in good faith and without notice of such
withdrawal, revocation or variation shall be affected thereby.
MANAGEMENT
115. (A) The management of the business of the Company shall be General
vested in the Board which, in addition to the powers and powers of
authorities expressly conferred upon it by these Bye-Laws, Company
may exercise all such powers and do all such acts and things vested in
as may be exercised or done or approved by the Company and Board
which are not hereby or by the Statutes expressly directed
or required to be exercised or done by the Company in
general meeting, but subject nevertheless to the provisions
of the Statutes and of these Bye-Laws and to any regulations
from time to time made by the Company in general meeting not
being inconsistent with such provisions of these Bye-Laws,
provided that no regulation so made shall invalidate any
prior act of the Board which would have been valid if such
regulation had not been made.
(B) Without prejudice to the general powers conferred by these
Bye-Laws, it is hereby expressly declared that the Board
shall have the following powers:-
(i) to give to any person the right or option
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of requiring at a future date that an allotment shall
be made to him of any share at par or at such premium
and on such other terms as may be agreed; and
(ii) to give to any Directors, officers or employees of
the Company an interest in any particular business or
transaction or participation in the profits thereof
or in the general profits of the Company either in
addition to or in substitution for a salary or other
remuneration.
MANAGERS
116. The Board may from time to time appoint a general manager, manager Appointment
or managers of the business of the Company and may fix his or and
their remuneration either by way of salary or commission or by remuneration
conferring the right to participation in the profits of the of managers
Company or by a combination of two or more of these modes and pay
the working expenses of any of the staff of the general manager,
manager or managers who may be employed by him or them upon the
business of the Company.
117. The appointment of such general manager, manager or managers may Tenure of
be for such period as the Board may decide and the Board may office and
confer upon him or them all or any of the powers of the Board and powers
such title or titles as it may think fit.
118. The Board may enter into such agreement or agreements with any Terms and
such general manager, manager or managers upon such terms and conditions of
conditions in all respects as the Board may in its absolute appointment
discretion think fit, including a power for such general manager,
manager or managers to appoint an assistant manager or managers or
other employees whatsoever under them for the purpose of carrying
on the business of the Company.
CHAIRMAN AND OTHER OFFICERS
119. The Board may elect any one of its body to act as Chairman and/or Chairman,
another to act as Deputy Chairman and may elect or otherwise Deputy
appoint other officers and determine the period for which each of Chairman and
them is to hold office. The Chairman or, in his absence, the officers
Deputy Chairman shall preside at meetings of the Board, but if no
such Chairman or Deputy Chairman be elected or appointed, or if at
any meeting the Chairman or Deputy Chairman is not present within
five minutes after the time appointed for holding the same, the
Directors present shall choose one of their number to be Chairman
of such meeting. All
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the provisions of Bye-Laws 112, 113 and 114 shall mutatis mutandis
apply to any Directors elected or otherwise appointed to any
office in accordance with the provisions of this Bye-Law.
PROCEEDINGS OF THE DIRECTORS
120. The Board may meet together for the despatch of business, adjourn Meeting of
and otherwise regulate its meetings and proceedings as it thinks the Board,
fit and may determine the quorum necessary for the transaction of quorum, etc.
business. Unless otherwise determined two Directors shall be a
quorum. For the purpose of this Bye-Law an alternate Director
shall be counted in a quorum but, notwithstanding that an
alternate Director is also a Director or is an alternate for more
than one Director, he shall for quorum purposes count as only one
Director. A meeting of the Board or any committee of the Board may
be held by means of such telephone, electronic or other
communication facilities as permit all persons participating in
the meeting to communicate with each other simultaneously and
instantaneously, and participation in such a meeting shall
constitute presence in person at such meeting.
121. A Director may, and on the request of a Director the Secretary Convening of
shall, at any time summon a meeting of the Board which may be held Board
in any part of the world provided that no such meeting shall be
summoned to be held outside the territory in which the Head Office
is for the time being situate without the prior approval of the
Directors. Notice thereof shall be given to each Director and
alternate Director either in writing or by telephone or by telex
or telegram at the address from time to time notified to the
Company by such Director or in such other manner as the Board may
from time to time determine. A Director absent or intended to be
absent from the territory in which the Head Office is for the time
being situate may request the Board that notices of Board meetings
shall during his absence be sent in writing to him at his last
known address or any other address given by him to the Company for
this purpose, but such notices need not be given any earlier than
notices given to Directors not so absent and in the absence of any
such request it shall not be necessary to give notice of a Board
meeting to any Director who is for the time being absent from such
territory. A Director may waive notice of any meeting either
prospectively or retrospectively.
122. Questions arising at any meeting of the Board shall be decided by How questions
a majority of votes, and in case of an equality of votes the to be decided
Chairman shall have a second or casting vote.
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123. A meeting of the Board for the time being at which a quorum is Powers of
present shall be competent to exercise all or any of the meeting
authorities, powers and discretions by or under these Bye-Laws for
the time being vested in or exercisable by the Board generally.
124. The Board may delegate any of its powers to committees consisting Power to
of such member or members of its body and such other persons as appoint
the Board thinks fit, and it may from time to time revoke such committee and
delegation or revoke the appointment of and discharge any such to delegate
committees either wholly or in part, and either as to persons or
purposes, but every committee so formed shall in the exercise of
the powers so delegated conform to any regulations that may from
time to time be imposed upon it by the Board.
125. All acts done by any such committee in conformity with such Acts of
regulations and in fulfilment of the purposes for which it is committee to
appointed, but not otherwise, shall have the like force and effect be of same
as if done by the Board, and the Board shall have power, with the effect as
consent of the Company in general meeting, to remunerate the acts of Board
members of any special committee, and charge such remuneration to
the current expenses of the Company.
126. The meetings and proceedings of any such committee consisting of Proceedings
two or more members shall be governed by the provisions herein of committee
contained for regulating the meetings and proceedings of the Board
so far as the same are applicable thereto and are not replaced by
any regulations imposed by the Board pursuant to Bye-Law 124.
127. All acts bona fide done by any meeting of the Board or by any such When acts of
committee or by any person acting as a Director shall, Board or
notwithstanding that it shall be afterwards discovered that there committee to
was some defect in the appointment of such Director or persons be valid
acting as aforesaid or that they or any of them were disqualified, notwith-
be as valid as if every such person had been duly appointed and standing
was qualified to be a Director or member of such committee. defects
128. The continuing Directors may act notwithstanding any vacancy in Directors'
their body but, if and so long as their number is reduced below powers when
the number fixed by or pursuant to these Bye-Laws as the necessary vacancies
quorum of Directors, the continuing Director or Directors may act exists
for the purpose of increasing the number of Directors to that
number or of summoning a general meeting of the Company but for no
other purpose.
129. A resolution in writing signed by all the Directors Directors'
-48-
except such as are absent from the territory in which the Head resolutions
Office is for the time being situate or temporarily unable to act
through ill-health or disability (or their alternate Directors)
shall (so long as such a resolution shall be signed by at least
two Directors or their alternates and provided that a copy of such
resolution has been given or the contents thereof communicated to
all the Directors (or their alternates) for the time being
entitled to receive notices of Board meetings) be as valid and
effectual as if it had been passed at a meeting of the Board duly
convened and held. Any such resolutions in writing may consist of
several documents in like form each signed by one or more of the
Directors or alternate Directors.
MINUTES
130. (A) The Board shall cause minutes to be made of:- Minutes of
proceedings of
(i) all appointments of officers made by the Board; meetings and
Directors
(ii) the names of the Directors present at each meeting of
the Board and of committees appointed pursuant to
Bye-Law 124; and
(iii) all resolutions and proceedings at all meetings of the
Company and of the Board and of such committees.
(B) Any such minutes shall be conclusive evidence of any such
proceedings if they purport to be signed by the chairman of
the meeting at which the proceedings were held or by the
chairman of the next succeeding meeting.
(C) The Directors shall duly comply with the provisions of the
Companies Act in regard to keeping a register of
shareholders and to the production and furnishing of copies
of or extracts from such register.
(D) Any register, index, minute book, book of account or other
book required by these presents or the Statutes to be kept
by or on behalf of the Company may be kept either by making
entries in bound books or by recording them in any other
manner which shall include, without prejudice to the
generality thereof, recording by means of magnetic tape,
microfilm, computer or any other non-manual system of
recording. In any case in which bound books are not used,
the Directors shall take adequate precautions for guarding
-49-
against falsification and for facilitating its discovery.
SECRETARY
131. The Secretary shall be appointed by the Board for such term, at Appointment of
such remuneration and upon such conditions as it may think fit, Secretary
and any Secretary so appointed may be removed by the Board.
Anything by the Statutes or these Bye-Laws required or authorised
to be done by or to the Secretary, if the office is vacant or
there is for any other reason no Secretary capable of acting, may
be done by or to any assistant or deputy Secretary, or if there is
no assistant or deputy Secretary capable of acting, by or to any
officer of the Company authorised generally or specially on behalf
of the Board. If the Secretary appointed is a corporation or other
body, it may act and sign by the hand of any one or more of its
directors or officers duly authorised.
132. The duties of the Secretary shall be those prescribed by the Duties of the
Companies Act and these Bye-Laws, together with such other duties Secretary
as may from time to time be prescribed by the Board.
133. A provision of the Statutes or of these Bye-Laws requiring or Same person
authorising a thing to be done by or to a Director and the not to act
Secretary shall not be satisfied by its being done by or to the in two
same person acting both as Director and as, or in place of, the capacities at
Secretary. once
GENERAL MANAGEMENT AND USE OF THE SEAL
134. (A) Subject to the Statutes, the Company shall have one or more Custody of
Seals as the Directors may determine. The Directors shall Seal
provide for the safe custody of each Seal, and no Seal shall
be used without the authority of the Directors or a
committee authorised by the Directors in that behalf.
(B) Every instrument to which a Seal shall be affixed shall be Use of Seal
signed autographically by one Director and the Secretary or
by two Directors or some other person appointed by the Board
for the purpose provided that as regards any certificates
for shares or debentures or other securities of the Company
the Directors may by resolution determine that such
signatures or either of them shall be dispensed with or
-50-
affixed by some method or system of mechanical signature
other than autographic as specified in such resolution or
that such certificates need not be signed by any person.
(C) The Company may have a Securities Seal for use for sealing Securities
certificates for shares or other securities issued by the Seal
Company and no signature of any Director, officer or other
person and no mechanical reproduction thereof shall be
required on any such certificates or other document and any
such certificates or other document to which such Securities
Seal is affixed shall be valid and deemed to have been
sealed and executed with the authority of the Board
notwithstanding the absence of any such signature or
mechanical reproduction as aforesaid.
135. All cheques, promissory notes, drafts, bills of exchange and other Cheques and
negotiable instruments, and all receipts for moneys paid to the banking
Company shall be signed, drawn, accepted, endorsed or otherwise arrangements
executed, as the case may be, in such manner as the Board shall
from time to time by resolution determine. The Company's banking
accounts shall be kept with such banker or bankers as the Board
shall from time to time determine.
136. (A) The Board may from time to time and at any time, by power of Power to
attorney under the Seal, appoint any company, firm or person appoint
or any fluctuating body of persons, whether nominated attorney
directly or indirectly by the Board, to be the attorney or
attorneys of the Company for such purposes and with such
powers, authorities and discretions (not exceeding those
vested in or exercisable by the Board under these Bye-Laws)
and for such period and subject to such conditions as it may
think fit, and any such power of attorney may contain such
provisions for the protection and convenience of persons
dealing with any such attorney as the Board may think fit,
and may also authorise any such attorney to sub-delegate all
or any of the powers, authorities and discretions vested in
him.
(B) The Company may, by writing under its Seal, empower any Execution of
person, either generally or in respect of any specified deeds by
matter, as its attorney to execute deeds and instruments on attorney
its behalf and to enter into contracts and sign the same on
its behalf and every deed signed by such attorney on behalf
of the
-51-
Company and under his seal shall bind the Company and have
the same effect as if it were under the Seal.
137. The Board may establish any committees, regional or local boards Regional or
or agencies for managing any of the affairs of the Company, either local boards
in the Relevant Territory or elsewhere, and may appoint any
persons to be members of such committees, regional or local boards
or agencies and may fix their remuneration, and may delegate to
any committee, regional or local board or agent any of the powers,
authorities and discretions vested in the Board (other than its
powers to make calls and forfeit shares), with power to
sub-delegate, and may authorise the members of any regional or
local board or any of them to fill any vacancies therein and to
act notwithstanding any such vacancies, and any such appointment
or delegation may be upon such terms and subject to such
conditions as the Board may think fit, and the Board may remove
any person so appointed and may annul or vary any such delegation,
but no person dealing in good faith and without notice of any such
annulment or variation shall be affected thereby.
138. The Board may establish and maintain or procure the establishment Power to
and maintenance of any contributory or non-contributory pension or establish
superannuation funds for the benefit of, or give or procure the pension funds
giving of donations, gratuities, pensions, allowances or
emoluments to, any persons who are or were at any time in the
employment or service of the Company, or of any company which is a
subsidiary of the Company, or is allied or associated with the
Company or with any such subsidiary company, or who are or were at
any time directors or officers of the Company or of any such other
company as aforesaid and the spouses, widows, widowers, families
and dependants of any such persons. The Board may also establish
and subsidise or subscribe to any institutions, associations,
clubs or funds calculated to be for the benefit of or to advance
the interests and well-being of the Company or of any such other
company as aforesaid or of any such persons as aforesaid, and may
make payments for or towards the insurance of any such persons as
aforesaid, and subscribe or guarantee money for charitable or
benevolent objects or for any exhibition or for any public,
general or useful object. The Board may do any of the matters
aforesaid, either alone or in conjunction with any such other
company as aforesaid. Any Director holding any such employment or
office shall be entitled to participate in and retain for his own
-52-
benefit any such donation, gratuity, pension, allowance or
emolument.
AUTHENTICATION OF DOCUMENTS
139. Any Director or the Secretary or other authorised officer of the Power to
Company shall have power to authenticate any documents affecting authenticate
the constitution of the Company and any resolutions passed by the
Company or the Directors or any committee, and any books, records,
documents and accounts relating to the business of the Company,
and to certify copies thereof or extracts therefrom as true copies
of extracts; and where any books, records, documents or accounts
are elsewhere than at the Registered Office or the Head Office,
the local manager or such other officer of the Company having the
custody thereof shall be deemed to be the authorised officer of
the Company as aforesaid. A document purporting to be a copy of a
resolution, or an extract from the minutes of a meeting, of the
Company or of the Directors or any local board or committee which
is certified as aforesaid shall be conclusive evidence in favour
of all persons dealing with the Company upon the faith thereof
that such resolution has been duly passed or, as the case may be,
that any minute so extracted is a true and accurate record of
proceedings at a duly constituted meeting.
CAPITALISATION OF RESERVES
140. (A) The Company in general meeting may, upon the recommendation Power to
of the Board, resolve to capitalise any part of the capitalise
Company's reserves (including any contributed surplus
account and also including any share premium account or
other undistributable reserve, but subject to the provisions
of the law with regard to unrealised profits) or undivided
profits not required for the payment or provision of the
dividend on any shares with a preferential right to
dividend, and accordingly that such part be sub-divided
amongst the shareholders who would have been entitled
thereto if distributed by way of dividend and in the same
proportions, on condition that the same be not paid in cash
but be applied either in or towards paying up any amounts
for the time being unpaid on any shares held by such
shareholders respectively or paying up in full unissued
shares or debentures or other securities of the Company to
be allotted and
-53-
distributed credited as fully paid to and amongst such
shareholders in the proportion aforesaid, or partly in one
way and partly in the other provided that for the purpose of
this Bye-Law, any amount standing to the credit of any share
premium account may only be applied in the paying up of
unissued shares to be issued to shareholders of the Company
as fully paid and provided further that any sum standing to
the credit of the share premium account may only be applied
in crediting as fully paid shares of the same class as that
from which the relevant share premium was derived.
(B) Whenever such a resolution as aforesaid shall have been Effect of
passed the Board shall make all appropriations and resolution to
applications of the reserves or undivided profits resolved capitalise
to be capitalised thereby, and all allotments and issues of
fully paid shares, debentures, or other securities and
generally shall do all acts and things required to give
effect thereto. For the purpose of giving effect to any
resolution under this Bye-Law, the Board may settle any
difficulty which may arise in regard to a capitalisation
issue as it thinks fit, and in particular may disregard
fractional entitlements or round the same up or down and may
determine that cash payments shall be made to any
shareholders in lieu of fractional entitlements or that
fractions of such value as the Board may determine may be
disregarded in order to adjust the rights of all parties or
that fractional entitlements shall be aggregated and sold
and the benefit shall accrue to the Company rather than to
the shareholders concerned. The Board may appoint any person
to sign on behalf of the persons entitled to share in a
capitalisation issue a contract for allotment and such
appointment shall be effective and binding upon all
concerned, and the contract may provide for the acceptance
by such persons of the shares, debentures or other
securities to be allotted and distributed to them
respectively in satisfaction of their claims in respect of
the sum so capitalised.
DIVIDENDS, CONTRIBUTED SURPLUS AND RESERVES
141. The Company in general meeting may declare dividends in any Power to
currency but no dividends shall exceed the amount recommended by declare
the Board. dividends
-54-
142. (A) The Board may subject to Bye-Law 143 from time to time pay Board's power
to the shareholders such interim dividends as appear to the to pay
Board to be justified by the position of the Company and, in interim
particular (but without prejudice to the generality of the dividends
foregoing), if at any time the share capital of the Company
is divided into different classes, the Board may pay such
interim dividends in respect of those shares in the capital
of the Company which confer to the holders thereof deferred
or non-preferential rights as well as in respect of those
shares which confer on the holders thereof preferential
rights with regard to dividend and provided that the Board
acts bona fide the Board shall not incur any responsibility
to the holders of shares conferring any preference for any
damage that they may suffer by reason of the payment of an
interim dividend on any shares having deferred or
non-preferential rights.
(B) The Board may also pay half-yearly or at other suitable
intervals to be settled by it any dividend which may be
payable at a fixed rate if the Board is of the opinion that
the profits justify the payment.
143. (A) No dividend shall be declared or paid and no distribution of Dividend not
contributed surplus made otherwise than in accordance with to be paid
the Statutes. No dividend shall be paid otherwise than out out of
of profits available for distribution. capital/
Distribution
(B) Subject to the provisions of the Companies Act (but without of
prejudice to paragraph (A) of this Bye-Law), where any contributed
asset, business or property is bought by the Company as from surplus
a past date (whether such date be before or after the
incorporation of the Company) the profits and losses thereof
as from such date may at the discretion of the Directors in
whole or in part be carried to revenue account and treated
for all purposes as profits or losses of the Company, and be
available for dividend accordingly. Subject as aforesaid, if
any shares or securities are purchased cum dividend or
interest, such dividend or interest may at the discretion of
the Board be treated as revenue, and it shall not be
obligatory to capitalise the same or any part thereof.
(C) Subject to Bye-Law 143 (D) all dividends and other
distributions in respect of shares in the Company shall be
stated and discharged, in the case of shares denominated in
Hong Kong dollars, in Hong Kong
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dollars, and in the case of shares denominated in United
States dollars, in United States dollars, provided that, in
the case of shares denominated in Hong Kong dollars, the
Board may determine in the case of any distribution that
shareholders may elect to receive the same in United States
dollars or any other currency selected by the Board,
conversion to be effected at such rate of exchange as the
Board may determine.
(D) If, in the opinion of the Board, any dividend or other
distribution in respect of shares or any other payment to be
made by the Company to any shareholder is of such a small
amount as to make payment to that shareholder in the
relevant currency impracticable or unduly expensive either
for the Company or the shareholder then such dividend or
other distribution or other payment may, at the discretion
of the Board, be paid or made in the currency of the country
of the relevant shareholder (as indicated by the address of
such shareholder on the register).
144. Notice of the declaration of an interim dividend may be given by Notice of
advertisement or in such other manner as is permissible under the interim
Listing Rules and other relevant legislation in the Relevant dividend
Territory and in such other territory or territories as the Board
may determine and in such manner as the Board shall determine.
145. No dividend or other moneys payable on or in respect of a share No interest
shall bear interest as against the Company. on dividend
146. Whenever the Board or the Company in general meeting has resolved Dividend in
that a dividend be paid or declared, the Board may further resolve specie
that such dividend be satisfied wholly or in part by the
distribution of specific assets of any kind and in particular of
paid up shares, debentures or warrants to subscribe for securities
of the Company or any other company, or in any one or more of such
ways, with or without offering any rights to shareholders to elect
to receive such dividend in cash, and where any difficulty arises
in regard to the distribution the Board may settle the same as it
thinks expedient, and in particular may disregard fractional
entitlements or round the same up or down, and may fix the value
for distribution of such specific assets, or any part thereof, and
may determine that cash payments shall be made to any shareholders
upon the footing of the value so fixed in order to adjust the rights
of all parties and may determine that
-56-
fractional entitlements shall be aggregated and sold and the
benefit shall accrue to the Company rather than to the
shareholders concerned, and may vest any such specific assets in
trustees as may seem expedient to the Board and may appoint any
person to sign any requisite instruments of transfer and other
documents on behalf of the persons entitled to the dividend and
such appointment shall be effective. Where requisite, the Board
may appoint any person to sign a contract on behalf of the
persons entitled to the dividend and such appointment shall be
effective. The Board may resolve that no such assets shall be
made available or paid to shareholders with registered addresses
in any particular territory or territories being a territory or
territories where, in the absence of a registration statement or
other special formalities, this would or might, in the opinion
of the Board, be unlawful or impracticable and in such event the
only entitlement of the shareholders aforesaid shall be to
receive cash payments as aforesaid. Shareholders affected as a
result of the foregoing sentence shall not be or be deemed to be
a separate class of shareholders for any purpose whatsoever.
147. (A) Whenever the Board or the Company in general meeting has Scrip
resolved that a dividend be paid or declared on the share dividends
capital of the Company, the Board may further resolve:-
either
(i) that such dividend be satisfied wholly or in part in
the form of an allotment of shares credited as fully
paid up on the basis that the shares so allotted
shall be of the same class or classes as the class or
classes already held by the allottee, provided that
the shareholders entitled thereto will be entitled to
elect to receive such dividend (or part thereof) in
cash in lieu of such allotment. In such case, the
following provisions shall apply:-
(a) the basis of any such allotment shall be
determined by the Board;
(b) the Board, after determining the basis of
allotment, shall give not less than two weeks'
notice in writing to the shareholders of the
right of election accorded to them and shall
send with such notice forms of election and
specify the procedure
-57-
to be followed and the place at which and the
latest date and time by which duly completed
forms of election must be lodged in order to be
effective;
(c) the right of election may be exercised in
respect of the whole or part of that portion of
the dividend in respect of which the right of
election has been accorded; and
(d) the dividend (or that part of the dividend to be
satisfied by the allotment of shares as
aforesaid) shall not be payable in cash on
shares in respect whereof the cash election has
not been duly exercised ("the non-elected
shares") and in lieu and in satisfaction thereof
shares shall be allotted credited as fully paid
up to the holders of the non-elected shares on
the basis of allotment determined as aforesaid
and for such purpose the Board shall capitalise
and apply out of any part of the undivided
profits of the Company or any part of any of the
Company's reserve accounts (including any
special account, contributed surplus account,
share premium account and capital redemption
reserve fund (if there be any such reserve)) as
the Board may determine a sum equal to the
aggregate nominal amount of the shares to be
allotted on such basis and apply the same in
paying up in full the appropriate number of
shares for allotment and distribution to and
amongst the holders of the non-elected shares on
such basis.
or
(ii) that shareholders entitled to such dividend will be
entitled to elect to receive an allotment of shares
credited as fully paid up in lieu of the whole or such
part of the dividend as the Directors may think fit on
the basis that the shares so allotted shall be of the
same class or classes as the class or classes of
shares already held by the allottee. In such case, the
following provisions shall apply:-
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(a) the basis of any such allotment shall be
determined by the Board;
(b) the Board, after determining the basis of
allotment, shall give not less than two weeks'
notice in writing to the shareholder of the
right of election accorded to them and shall
send with such notice forms of election and
specify the procedure to be followed and the
place at which and the latest date and time by
which duly completed forms of election must be
lodged in order to be effective;
(c) the right of election may be exercised in
respect of the whole or part of that portion of
the dividend in respect of which the right of
election has been accorded; and
(d) the dividend (or that part of the dividend in
respect of which a right of election has been
accorded) shall not be payable on shares in
respect whereof the share election has been duly
exercised ("the elected shares") and in lieu
thereof shares shall be allotted credited as
fully paid up to the holders of the elected
shares on the basis of allotment determined as
aforesaid and for such purpose the Board shall
capitalise and apply out of any part of the
undivided profits of the Company or any part of
any of the Company's reserve accounts (including
any special account, contributed surplus
account, share premium account and capital
redemption reserve fund (if there be any such
reserve)) as the Board may determine a sum equal
to the aggregate nominal amount of the shares to
be allotted on such basis and apply the same in
paying up in full the appropriate number of
shares for allotment and distribution to and
amongst the holders of the elected shares on
such basis.
(B) The shares allotted pursuant to the provisions of paragraph
(A) of this Bye-Law shall rank pari passu in all respects
with the shares then in issue save only as regards
participation:-
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(i) in the relevant dividend (or the right to receive or
to elect to receive an allotment of shares in lieu
thereof as aforesaid); or
(ii) in any other distributions, bonuses or rights paid,
made, declared or announced prior to or
contemporaneously with the payment or declaration of
the relevant dividend.
Unless, contemporaneously with the announcement by the Board
of its proposal to apply the provisions of sub-paragraph (i)
or (ii) of paragraph (A) of this Bye-Law in relation to the
relevant dividend or contemporaneously with its announcement
of the distribution, bonus or rights in question, the Board
shall specify that the shares to be allotted pursuant to the
provisions of paragraph (A) of this Bye-Law shall rank for
participation in such distribution, bonus or rights.
(C) The Board may do all acts and things considered necessary or
expedient to give effect to any capitalisation pursuant to
the provisions of paragraph (A) of this Bye-Law with full
power to the Board to make such provisions as they think fit
in the case of shares becoming distributable in fractions
(including provisions whereby, in whole or in part,
fractional entitlements are aggregated and sold and the net
proceeds distributed to those entitled, or are disregarded
or rounded up or down or whereby the benefit of fractional
entitlements accrues to the Company rather than to the
shareholders concerned). The Board may authorise any person
to enter into on behalf of all shareholders interested an
agreement with the Company providing for such capitalisation
and matters incidental thereto and any agreement made
pursuant to such authority shall be effective and binding on
all concerned.
(D) The Company may upon the recommendation of the Board by
Special Resolution resolve in respect of any one particular
dividend of the Company that notwithstanding the provisions
of paragraph (A) of this Bye-Law a dividend may be satisfied
wholly in the form of an allotment of shares credited as
fully paid up without offering any right to shareholders to
elect to receive such dividend in cash in lieu of such
allotment.
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(E) The Board may on any occasion determine that rights of
election and the allotment of shares under paragraph (A) of
this Bye-Law shall not be made available or made to any
shareholders with registered addresses in any territory
where in the absence of a registration statement or other
special formalities the circulation of an offer of such
rights of election or the allotment of shares would or might
be unlawful, and in such event the provisions aforesaid
shall be read and construed subject to such determination.
148. The Board may, before recommending any dividend, set aside out of Reserves
the profits of the Company such sums as it thinks fit as a reserve
or reserves which shall, at the discretion of the Board, be
applicable for meeting claims on or liabilities of the Company or
contingencies or for paying off any loan capital or for equalising
dividends or for any other purpose to which the profits of the
Company may be properly applied, and pending such application may,
at the like discretion, either be employed in the business of the
Company or be invested in such investments (other than shares of
the Company) as the Board may from time to time think fit, and so
that it shall not be necessary to keep any investments
constituting the reserve or reserves separate or distinct from any
other investments of the Company. The Board may also without
placing the same to reserve carry forward any profits which it may
think prudent not to distribute by way of dividend.
149. Unless and to the extent that the rights attached to any shares or Dividends to
the terms of issue thereof otherwise provide, all dividends shall be paid in
(as regards any shares not fully paid throughout the period in proportion to
respect of which the dividend is paid) be apportioned and paid pro paid up
rata according to the amounts paid or credited as paid up on the capital
shares during any portion or portions of the period in respect of
which the dividend is paid. For the purposes of this Bye-Law no
amount paid on a share in advance of calls shall be treated as
paid on the share.
150. (A) The Board may retain any dividends or other moneys payable Retention of
on or in respect of a share upon which the Company has a dividends etc.
lien, and may apply the same in or towards satisfaction of
the debts, liabilities or engagements in respect of which
the lien exists.
(B) The Board may deduct from any dividend or bonus Deduction
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payable to any shareholder all sums of money (if any) of debts
presently payable by him to the Company on account of calls,
instalments or otherwise.
151. Any general meeting sanctioning a dividend may make a call on the Dividend and
shareholders of such amount as the meeting fixes, but so that the call together
call on each shareholder shall not exceed the dividend payable to
him, and so that the call shall be made payable at the same time
as the dividend, and the dividend may, if so arranged between the
Company and the shareholder, be set off against the call.
152. A transfer of shares shall not pass the right to any dividend or Effect of
bonus declared thereon before the registration of the transfer. transfer
153. If two or more persons are registered as joint holders of any Receipt for
share, any one of such persons may give effectual receipts for any dividends by
dividends, interim dividends or bonuses and other moneys payable joint holders
in respect of such shares. of share
154. Unless otherwise directed by the Board, any dividend or bonus may Payment by
be paid by cheque or warrant sent through the post to the post
registered address of the shareholder entitled, or, in case of
joint holders, to the registered address of that one whose name
stands first in the register in respect of the joint holding or to
such person and to such address as the holder or joint holders may
in writing direct. Every cheque or warrant so sent shall be made
payable to the order of the person to whom it is sent, and the
payment of any such cheque or warrant shall operate as a good
discharge to the Company in respect of the dividend and/or bonus
represented thereby, notwithstanding that it may subsequently
appear that the same has been stolen or that any endorsement
thereon has been forged.
155. All dividends or bonuses unclaimed for one year after having been Unclaimed
declared may be invested or otherwise made use of by the Board for dividend
the benefit of the Company until claimed and the Company shall not
be constituted a trustee in respect thereof. All dividends or
bonuses unclaimed for six years after having been declared may be
forfeited by the Board and shall revert to the Company.
156. Any resolution declaring a dividend on shares of any class, Record dates
whether a resolution of the Company in general meeting or a
resolution of the Directors, may specify that the same shall be
payable or made to the persons registered as the holder of such
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shares at the close of business on a particular date,
notwithstanding that it may be a date prior to that on which the
resolution is passed, and thereupon the dividend or other
distribution shall be payable or made to them in accordance with
their respective holdings so registered, but without prejudice to
the rights inter se in respect of such dividend or other
distribution between the transferors and transferees of any such
shares. The provisions of this Bye-Law shall mutatis mutandis
apply to bonuses, capitalisation issues, distributions of realised
capital profits or offers or grants made by the Company to the
shareholders.
DISTRIBUTION OF REALISED CAPITAL PROFITS
157. The Company in general meeting may at any time and from time to Distribution
time resolve that any surplus moneys in the hands of the Company of realised
representing capital profits arising from moneys received or capital
recovered in respect of or arising from the realisation of any profits
capital assets of the Company or any investments representing the
same and not required for the payment or provision of any fixed
preferential dividend instead of being applied in the purchase of
any other capital assets or for other capital purposes be
distributed amongst the ordinary shareholders on the footing that
they receive the same as capital and in the shares and proportions
in which they would have been entitled to receive the same if it
had been distributed by way of dividend, provided that no such
profits as aforesaid shall be so distributed unless there shall
remain in the hands of the Company a sufficiency of other assets
to answer in full the whole of the liabilities and paid-up share
capital of the Company for the time being.
ANNUAL RETURNS
158. The Board shall make or cause to be made such annual or other Annual Returns
returns or filings as may be required to be made in accordance
with the Statutes.
ACCOUNTS
159. The Board shall cause true accounts to be kept of the sums of Accounts to
money received and expended by the Company, and the matters in be kept
respect of which such receipts and expenditure take place; and of
the property, assets, credits and liabilities of the Company and
of all other matters required by the Statutes or necessary to give
a true and fair view
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of the state of the Company's affairs and to show and explain its
transactions.
160. The books of account shall be kept at the Head Office or at such Where
other place or places as the Board thinks fit and shall always be accounts to
open to the inspection of the Directors provided that such records be kept
as are required by the Statutes shall also be kept at the
Registered Office.
161. No shareholder (not being a Director) or other person shall have Inspection by
any right of inspecting any account or book or document of the shareholders
Company except as conferred by the Statutes or ordered by a court
of competent jurisdiction or authorised by the Board or the
Company in general meeting.
162. (A) The Board shall from time to time cause to be prepared and Annual profit
laid before the Company at its annual general meeting such and loss
profit and loss accounts, balance sheets, group accounts (if account and
any) and reports as are required by the Statutes. balance sheet
(B) Every balance sheet of the Company shall be signed on behalf Annual report
of the Board by two of the Directors and subject to of Directors
paragraph (C) below, a copy of every balance sheet and balance
(including every document required by law to be comprised sheet to be
therein or annexed thereto) and profit and loss account sent to
which is to be laid before the Company at its annual general shareholders
meeting, together with a copy of the Directors' report and a
copy of the Auditors' report or a Summary Financial Report
in place of the Directors' report and the Auditors' report
(provided that prior consent has been obtained from the
shareholder and to the extent as allowed by the Companies
Act and other relevant legislations, regulations and the
Listing Rules), shall not less than twenty-one days before
the date of the meeting be sent using electronic means
(provided that prior consent has been obtained from the
shareholder pursuant to the Companies Act and other relevant
legislations, regulations and the Listing Rules) or by post
in a prepaid envelope or wrapper or by delivery or by
leaving it at such registered address as appearing in the
register or served personally or otherwise made available by
the Company using electronic means to every shareholder of,
and every holder of debentures of, the Company and every
other person entitled to receive notices of general meetings
of the Company under the provisions of the Companies Act or
these Bye-Laws, provided
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that this Bye-Law shall not require a copy of those
documents to be sent, served or otherwise made available to
any person of whose address the Company is not aware or to
more than one of the joint holders of any shares or
debentures, but any shareholder or holder of debentures to
whom a copy of those documents has not been sent, served or
otherwise made available to shall be entitled to receive a
copy free of charge on application at the Head Office or the
Registration Office. If all or any of the shares or
debentures of the Company shall for the time being be (with
the consent of the Company) listed or dealt in on any stock
exchange, there shall be forwarded to the appropriate
officer of such stock exchange such number of copies of such
documents as may for the time being be required under its
regulations or practice.
(C) For the purpose of this Bye-Law, subject to compliance with
the publication, shareholder's consent and notification
requirements of the Statutes and any rules prescribed by the
stock exchange in the Relevant Territory from time to time,
publication by the Company on the Company's web-site of
those documents to be sent to shareholders of the Company in
paragraph (B) above at least 21 days before the date of the
annual general meeting shall, in relation to each such
shareholder of the Company, be deemed to discharge the
Company's obligations under paragraph (B) above.
AUDITORS
163. (A) Auditors shall be appointed and the terms and tenure of such Appointment
appointment and their duties at all times regulated in of Auditors
accordance with the provisions of the Companies Act.
(B) The Company shall at each annual general meeting appoint one
or more firms of auditors to hold office until the
conclusion of the next annual general meeting, but if an
appointment is not made, the Auditors in office shall
continue in office until a successor is appointed. A
Director, officer or employee of the Company or of any of
its subsidiaries or a partner, officer or employee of any
such Director, officer or employee shall not be capable of
being appointed Auditors of the Company. The Board may fill
any casual vacancy in the office of Auditors, but while any
such vacancy continues the surviving or continuing
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Auditors (if any) may act. Subject as otherwise provided by
the Companies Act, the remuneration of the Auditors shall be
fixed by or on the authority of the Company in the annual
general meeting except that in any particular year the
Company in general meeting may delegate the fixing of such
remuneration to the Board and the remuneration of any
Auditors appointed to fill any casual vacancy may be fixed
by the Directors.
164. The Auditors shall have a right of access at all times to the Auditors to
books and accounts and vouchers of the Company and shall be have right of
entitled to require from the Directors and officers of the Company access to
such information as may be necessary for the performance of his or books and
their duties, and the Auditors shall make a report to the accounts
shareholders on the accounts examined by them and on every balance
sheet, consolidated balance sheet and consolidated profit and loss
account intended to be laid before the Company in the annual
general meeting during their tenure of office as required by the
Statutes.
165. A person other than the retiring Auditors shall not be capable of Appointment
being appointed Auditors at an annual general meeting unless of auditors
notice of an intention to nominate that person to the office of other than
Auditors has been given to the Company not less than fourteen days retiring
before the annual general meeting, and the Company shall send a auditors
copy of any such notice to the retiring Auditors and shall give
notice thereof to the shareholders not less than seven days before
the annual general meeting provided that the above requirements
may be waived by notice in writing by the retiring Auditors to the
Secretary provided that if after a notice of the intention to
nominate Auditors has been so given an annual general meeting is
called for a date fourteen days or less after that notice has been
given, the notice, though not given within the time required by
this Bye-Law, shall be deemed to have been properly given for the
purposes thereof, and the notice to be sent or given by the
Company may instead of being sent or given within the time
required by this provision be sent or given at the same time as
the notice of the annual general meeting.
166. Subject to the provisions of the Companies Act, all acts done by Defect of
any person acting as Auditors shall, as regards all persons appointment
dealing in good faith with the Company, be valid, notwithstanding
that there was some defect in their appointment or that they were
at the time of their appointment not qualified for appointment or
subsequently became disqualified.
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NOTICES
167.(A)(1) Except where otherwise expressly stated, any notice to be Service of
given to or by any person pursuant to these Bye-Laws shall notices
be in writing or, to the extent permitted by the Statutes
and any applicable rules prescribed by the stock exchange in
the Relevant Territory from time to time and subject to this
Bye-Laws, contained in an electronic communication. A notice
calling a meeting of the Directors need not be in writing.
167.(A)(2) A notice or document (including a share certificate) may be
served on or delivered to any shareholder of the Company
either personally or by sending it through the post in a
prepaid envelope or wrapper addressed to such shareholder at
his registered address as appearing in the register or by
leaving it at that address addressed to the shareholder or
by any other means authorized in writing by the member
concerned or by publishing it by way of advertisement in the
Newspapers. In the case of joint holders whose name stands
first in the register and notice so given shall be
sufficient notice to all the joint holders. Without limiting
the generality of the foregoing but subject to the Statutes
and any rules prescribed by the stock exchange in the
Relevant Territory from time to time, a notice or document
may be served or delivered by the Company to any shareholder
by electronic means to such address as may from time to time
be authorised by the member concerned or by publishing it on
a computer network and notifying the shareholder concerned,
in such manner as he may from time to time authorize, that
it has been so published.
167.(A)(3) Any such notice or document may be served or delivered by
the Company by reference to the register as it stands at any
time not more than fifteen days before the date of service
or delivery. No change in the register after that time shall
invalidate that service or delivery. Where any notice or
document is served or delivered to any person in respect of
a share in accordance with these Bye-Laws, no person
deriving any title or interest in that share shall be
entitled to any further service or delivery of that notice
or document.
167.(B)(1) Any notice or document required to be sent to
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or served upon the Company, or upon any officer of the
Company, may be sent or served by leaving the same or
sending it through the post in a prepaid envelop or wrapper
addressed to the Company or to such officer at the Company's
head office or Registered Office.
167.(B)(2) The Directors may from time to time specify the form and
manner in which a notice may be given to the Company by
electronic means, including one or more addresses for the
receipt of an electronic communication, and may prescribe
such procedures as they deem fit for verifying the
authenticity or integrity of any such electronic
communication. Any notice may be given to the Company by
electronic means only if it is given in accordance with the
requirements specified by the Directors.
168. Any shareholder whose registered address is outside the Relevant Shareholders
Territory may notify the Company in writing of an address in the out of the
Relevant Territory which for the purpose of service of notice Relevant
shall be deemed to be his registered address. Where the registered Territory
address of the shareholder is outside the Relevant Territory,
notice, if given through the post, shall be sent by prepaid
airmail letter.
169. Any notice or other document, if sent by mail, postage prepaid, When notice
shall be deemed to have been served or delivered on the day by post
following that on which the letter, envelope, or wrapper deemed to be
containing the same is put into the post. In proving such service served
it shall be sufficient to prove that the letter, envelope or
wrapper containing the notice or document was properly addressed
and put into the post as prepaid mail. Any notice or document not
sent by post but deposited by the Company at a registered address
shall be deemed to have been served or delivered on the day that
it was so deposited. Any notice or document, if sent by electronic
means (including through any relevant system), shall be deemed to
have been given on the day following that on which the electronic
communication was sent by or on behalf of the Company. Any notice
or document served or delivered by the Company by any other means
authorised in writing by the shareholder concerned shall be deemed
to have been served when the Company has carried out the action it
has been authorised to take for that purpose. Any notice or other
document published by way of advertisement or on a computer
network shall be deemed to have been served or delivered on the
day it was so published.
170. A notice may be given by the Company to the person Service of
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entitled to a share in consequence of the death, mental disorder notice to
or bankruptcy of a shareholder by sending it through the post in a persons
prepaid envelope or wrapper addressed to him by name, or by the entitled on
title of representative of the deceased, or trustee of the death, mental
bankrupt, or by any like description, at the address, if any, disorder or
supplied for the purpose by the person claiming to be so entitled, bankruptcy
or (until such an address has been so supplied) by giving the
notice in any manner in which the same might have been given if
the death, mental disorder or bankruptcy had not occurred.
171. Any person who by operation of law, transfer or other means Transferee to
whatsoever shall become entitled to any share shall be bound by be bound by
every notice in respect of such share which prior to his name and prior notices
address being entered on the register shall have been duly given
to the person from whom he derives his title to such share.
172. Any notice or document delivered or sent by post to, or left at Notice valid
the registered address of, any shareholder in pursuance of these though
presents, shall notwithstanding that such shareholder be then shareholder
deceased or bankrupt and whether or not the Company has notice of deceased,
his death or bankruptcy, be deemed to have been duly served in bankrupt
respect of any registered shares whether held solely or jointly
with other persons by such shareholder until some other person be
registered in his stead as the holder or joint holder thereof, and
such service shall for all purposes of these presents be deemed a
sufficient service of such notice or document on his personal
representatives and all persons (if any) jointly interested with
him in any such shares.
173. The signature to any notice to be given by the Company may be How notice to
written or printed. be signed
INFORMATION
174. No shareholder (not being a Director) shall be entitled to require Shareholders
discovery of or any information respecting any detail of the not entitled
Company's trading or any matter which is or may be in the nature to information
of a trade secret, mystery of trade or secret process which may
relate to the conduct of the business of the Company which in the
opinion of the Board it will be inexpedient in the interests of
the shareholders of the Company to communicate to the public.
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WINDING UP
175. A resolution that the Company be wound up by the Court or be wound Modes of
up voluntarily shall be a Special Resolution. winding up
176. If the Company shall be wound up, the surplus assets remaining Distribution
after payment to all creditors shall be divided among the of assets in
shareholders in proportion to the capital paid up on the shares winding up
held by them respectively, and if such surplus assets shall be
insufficient to repay the whole of the paid up capital, they shall
be distributed subject to the rights of any shares which may be
issued on special terms and conditions, so that, as nearly as may
be, the losses shall be borne by the shareholders in proportion to
the capital paid up on the shares held by them respectively.
177. If the Company shall be wound up (whether the liquidation is Assets may be
voluntary or ordered by the Court) the liquidator may, with the distributed
sanction of a Special Resolution, divide among the shareholders in in specie
specie or kind the whole or any part of the assets of the Company
whether the assets shall consist of property of one kind or shall
consist of properties of different kinds and the liquidator may,
for such purpose, set such value as he deems fair upon any one or
more class or classes of property to be divided as aforesaid and
may determine how such division shall be carried out as between
the shareholders or different classes of shareholders and the
shareholders within each class. The liquidator may, with the like
sanction, vest any part of the assets in trustees upon such trusts
for the benefit of shareholders as the liquidator, with the like
sanction, shall think fit, but so that no shareholder shall be
compelled to accept any shares or other assets upon which there is
a liability.
INDEMNITY
178. Save and except so far as the provisions of this Bye-Law shall be Indemnity
avoided by any provisions of the Statutes, the Directors,
alternate Directors, Auditors, Secretary and other officers for
the time being of the Company and the trustees (if any) for the
time being acting in relation to any of the affairs of the
Company, and their respective executors or administrators, shall
be indemnified and secured harmless out of the assets of the
Company from and against all actions, costs,
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charges, losses, damages and expenses which they or any of them,
their or any of their executors or administrators, shall or may
incur or sustain by reason of any act done, concurred in or
omitted in or about the execution of their duty or supposed duty
in their respective offices or trusts, except such (if any) as
they shall incur or sustain through their own wilful neglect or
default, fraud and dishonesty respectively, and none of them shall
be answerable for the acts, receipts, neglects or defaults of any
other of them, or for joining in any receipt for the sake of
conformity, or for any bankers or other persons with whom any
moneys or effects of the Company shall be lodged or deposited for
safe custody, or for the insufficiency or deficiency of any
security upon which any moneys of the Company shall be placed out
or invested, or for any other loss, misfortune or damage which may
happen in the execution of their respective offices or trusts, or
in relation thereto, except as the same shall happen by or through
their own wilful neglect or default, fraud and dishonesty
respectively.
UNTRACEABLE SHAREHOLDERS
179. Without prejudice to the rights of the Company under Bye-Law 155 Company cease
and the provisions of Bye-Law 180, the Company may cease sending sending
such cheques for dividend entitlements or dividend warrants by dividend
post if such cheques or warrants have been left uncashed on two warrants etc.
consecutive occasions. However, the Company may exercise the power
to cease sending cheques for dividend entitlements or dividend
warrants after the first occasion on which such a cheque or
warrant is returned undelivered.
180. The Company shall have the power to sell, in such manner as the Company may
Board thinks fit, any shares of a shareholder who is untraceable, sell shares
but no such sale shall be made unless:- of untrace-
able share-
(i) all cheques or warrants, being not less than three in total holders
number, for any sum payable in cash to the holder of such
shares in respect of them sent during the relevant period in
the manner authorised by the Bye-Laws of the Company have
remained uncashed;
(ii) so far as it is aware at the end of the relevant period, the
Company has not at any time during the relevant period
received any indication of the existence of the shareholder
who is the holder of such shares or of a person entitled to
such shares by death, bankruptcy or operation of law;
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(iii) the Company has caused an advertisement to be inserted in
the Newspapers of its intention to sell such shares and a
period of three months has elapsed since the date of such
advertisement; and
(iv) the Company has notified the stock exchange in the Relevant
Territory of its intention to effect such sale.
For the purpose of the foregoing, "relevant period" means the
period commencing twelve years before the date of publication of
the advertisement referred to in paragraph (iii) of this Bye-Law
and ending at the expiry of the period referred to in that
paragraph.
To give effect to any such sale the Board may authorise any person
to transfer the said shares and the instrument of transfer signed
or otherwise executed by or on behalf of such person shall be as
effective as if it had been executed by the registered holder or
the person entitled by transmission to such shares, and the
purchaser shall not be bound to see to the application of the
purchase money nor shall his title to the shares be affected by
any irregularity or invalidity in the proceedings relating to the
sale. The net proceeds of the sale will belong to the Company and
upon receipt by the Company of such proceeds it shall become
indebted to the former shareholder for an amount equal to such net
proceeds. No trusts shall be created in respect of such debt and
no interest shall be payable in respect of it and the Company
shall not be required to account for any money earned from the net
proceeds which may be employed in the business of the Company or
as it thinks fit. Any sale under this Bye-Law shall be valid and
effective notwithstanding that the shareholder holding the shares
sold is dead, bankrupt or otherwise under any legal disability or
incapacity.
DESTRUCTION OF DOCUMENTS
181. Subject to the Companies Act, the Company may destroy:- Destruction
of Documents
(a) any share certificate which has been cancelled at any time
after the expiry of one year from the date of such
cancellation;
(b) any dividend mandate or any variation or cancellation
thereof or any notification of change of name or address at
any time after the expiry of two years from the date on
which such
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mandate, variation, cancellation or notification was
recorded by the Company;
(c) any instrument of transfer of shares which has been
registered at any time after the expiry of six years from
the date of registration; and
(d) any other document, on the basis of which any entry in the
register is made, at any time after the expiry of six years
from the date on which an entry in the register was first
made in respect of it;
and it shall conclusively be presumed in favour of the Company
that every share certificate so destroyed was a valid certificate
duly and properly cancelled and that every instrument of transfer
so destroyed was a valid and effective instrument duly and
properly registered and that every other document destroyed
hereunder was a valid and effective document in accordance with
the recorded particulars thereof in the books or records of the
Company. Provided always that:-
(i) the foregoing provisions of this Bye-Law shall apply only
to the destruction of a document in good faith and without
express notice to the Company that the preservation of such
document was relevant to a claim;
(ii) nothing contained in this Bye-Law shall be construed as
imposing upon the Company any liability in respect of the
destruction of any such document earlier than as aforesaid
or in any case where the conditions of proviso (i) above
are not fulfilled; and
(iii) references in this Bye-Law to the destruction of any
document include reference to its disposal in any manner.
RESIDENT REPRESENTATIVE
182. Pursuant to the provisions of the Statutes, the Board shall, for Resident
so long as the Company does not have a quorum of Directors Representative
ordinarily resident in Bermuda, appoint a Resident Representative
as defined in the Statutes, to act on its behalf in Bermuda and to
maintain all such records as may be required by the Statutes to be
maintained in Bermuda and to make all necessary filings with the
Ministry of Finance and Registrar of Companies in Bermuda as may
be required by the Statutes and to fix his or their or its
remuneration either by way of salary or fee for the period of the
Resident Representative's
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service to the Company.
MAINTENANCE OF RECORDS
183. The Company shall keep at the office of its Resident Maintenance
Representative, in accordance with the provisions of the Statutes, of records
the following:-
(i) minutes of all proceedings of general meetings of the
Company;
(ii) all financial statements required to be prepared by the
Company under the Companies Act together with the Auditors'
report thereon;
(iii) all records of account required by Section 83 of the
Companies Act to be kept in Bermuda; and
(iv) all such documents as may be required in order to provide
evidence of the continued listing of the Company on an
appointed stock exchange within the meaning of the Companies
Act.
SUBSCRIPTION RIGHT RESERVE
184. (A) Subject to the Statutes if, so long as any of the rights Subscription
attaching to any warrants issued by the Company to subscribe right reserve
for shares of the Company shall remain exercisable, the
Company does any act or engages in any transaction which, as
a result of any adjustments to the subscription price in
accordance with the provisions applicable under the terms
and conditions of the warrants, would reduce the
subscription price to below the par value of a share, then
the following provisions shall apply:-
(i) as from the date of such act or transaction the
Company shall establish and thereafter (subject as
provided in this Bye-Law) maintain in accordance with
the provisions of this Bye-Law a reserve (the
"Subscription Right Reserve") the amount of which
shall at no time be less than the sum which for the
time being would be required to be capitalised and
applied in paying up in full the nominal amount of the
additional shares required to be issued and allotted
credited as fully paid pursuant to sub-paragraph (iii)
below on the exercise in full of
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all the subscription rights outstanding and shall
apply the Subscription Right Reserve in paying up in
full such difference in respect of such additional
shares as and when the same are allotted;
(ii) the Subscription Right Reserve shall not be used for
any purpose other than that specified above unless all
other reserves of the Company (other than the share
premium account and capital redemption reserve fund)
have been used and will only be used to make good
losses of the Company if and so far as is required by
law;
(iii) upon the exercise of all or any of the subscription
rights represented by any warrant, the relevant
subscription rights shall be exercisable in respect of
a nominal amount of shares equal to the amount in cash
which the holder of such warrant is required to pay on
exercise of the subscription rights represented
thereby (or, as the case may be the relevant portion
thereof in the event of a partial exercise of the
subscription rights) and, in addition, there shall be
allotted in respect of such subscription rights to the
exercising warrantholder, credited as fully paid, such
additional nominal amount of shares as is equal to the
difference between:-
(aa) the said amount in cash which the holder of such
warrant is required to pay on exercise of the
subscription rights represented thereby (or, as
the case may be, the relevant portion thereof in
the event of a partial exercise of the
subscription rights); and
(bb) the nominal amount of shares in respect of which
such subscription rights would have been
exercisable having regard to the provisions of
the conditions of the warrants, had it been
possible for such subscription rights to
represent the right to subscribe for shares at
less than par;
and immediately upon such exercise so much of the sum
standing to the credit of
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the Subscription Right Reserve as is required to pay
up in full such additional nominal amount of shares
shall be capitalised and applied in paying up in full
such additional nominal amount of shares which shall
forthwith be allotted credited as fully paid to the
exercising warrantholder; and
(iv) if upon the exercise of the subscription rights
represented by any warrant the amount standing to the
credit of the Subscription Right Reserve is not
sufficient to pay up in full such additional nominal
amount of shares equal to such difference as aforesaid
to which the exercising warrantholder is entitled, the
Board shall apply any profits or reserves then or
thereafter becoming available (including, to the
extent permitted by law, contributed surplus account,
share premium account and capital redemption reserve
fund) for such purpose until such additional nominal
amount of shares is paid up and allotted as aforesaid
and until then no dividend or other distribution shall
be paid or made on the fully paid shares of the
Company then in issue. Pending such payment up and
allotment, the exercising warrantholder shall be
issued by the Company with a certificate evidencing
his right to the allotment of such additional nominal
amount of shares. The rights represented by any such
certificate shall be in registered form and shall be
transferable in whole or in part in units of one share
in the like manner as the shares for the time being
are transferable, and the Company shall make such
arrangements in relation to the maintenance of a
register therefor and other matters in relation
thereto as the Board may think fit and adequate
particulars thereof shall be made known to each
relevant exercising warrantholder upon the issue of
such certificate.
(B) Shares allotted pursuant to the provisions of this Bye-Law
shall rank pari passu in all respects with the other shares
allotted on the relevant exercise of the subscription rights
represented by the warrant concerned. Notwithstanding
anything contained in paragraph (A) of this Bye-Law, no
fraction of any share
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shall be allotted on exercise of the subscription rights.
(C) The provisions of this Bye-Law as to the establishment and
maintenance of the Subscription Right Reserve shall not be
altered or added to in any way which would vary or abrogate,
or which would have the effect of varying or abrogating, the
provisions for the benefit of any warrantholder or class of
warrantholders under this Bye-Law without the sanction of a
Special Resolution of such warrantholders or class of
warrantholders.
(D) A certificate or report by the Auditors for the time being
of the Company as to whether or not the Subscription Right
Reserve is required to be established and maintained and if
so the amount thereof so required to be established and
maintained, as to the purposes for which the Subscription
Right Reserve has been used, as to the extent to which it
has been used to make good losses of the Company, as to the
additional nominal amount of shares required to be allotted
to exercising warrantholders credited as fully paid, and as
to any other matter concerning the Subscription Right
Reserve shall (in the absence of manifest error) be
conclusive and binding upon the Company and all
warrantholders and shareholders.
RECORD DATES
185. Notwithstanding any other provision of these Bye-Laws the Company
or the Board may fix any date as the record date for any dividend,
distribution, allotment or issue and such record date may be on or
at any time before or after any date on which such dividend,
distribution, allotment or issue is declared, paid or made.
STOCK
186. The following provisions shall have effect at any time and from
time to time that they are not prohibited or inconsistent with the
Statutes:-
(1) The Company may by Ordinary Resolution convert any paid up
shares into stock, and may from time to time by like
resolution reconvert any stock into paid up shares of any
denomination.
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(2) The holders of stock may transfer the same or any part
thereof in the same manner, and subject to the same
regulations as and subject to which the shares from which
the stock arose might prior to conversion have been
transferred or as near thereto as circumstances admit, but
the Directors may from time to time, if they think fit, fix
the minimum amount of stock transferable and restrict or
forbid the transfer of fractions of that minimum, but so
that such minimum shall not exceed the nominal amount of
the shares from which the stock arose. No warrants to
bearer shall be issued in respect of any stock.
(3) The holders of stock shall, according to the amount of the
stock held by them, have the same rights, privileges and
advantages as regards dividends, participation in assets on
a winding up, voting at meetings, and other matters, as if
they held the shares from which the stock arose, but no such
privilege or advantage (except participation in the
dividends and profits of the Company) shall be conferred by
an amount of stock which would not, if existing in shares,
have conferred such privilege or advantage.
(4) Such of the provisions of these Bye-Laws as are applicable
to paid up shares shall apply to stock, and the words
"share" and "shareholder" therein shall include "stock" and
"stockholder".