Exhibit 3.2
B Y E - L A W S
OF
SHIP FINANCE INTERNATIONAL LIMITED
Amended and adopted on the 1st day of December, 2006
I N D E X
---------
Bye-law Subject Page
- ------- ------- ----
1 Interpretation 1 & 2
2 Registered Office 2
3,4 Share Rights 2 & 3
5,6 Modification of Rights 3
7-9 Shares 3 & 4
10-12 Certificates 4
13-15 Lien 4 & 5
16-21 Calls on Shares 5 & 6
22-28 Forfeiture of Shares 6 & 7
29 Register of Shareholders 7
30 Register of Directors and Officers 7
31-34 Transfer of Shares 7 & 8
35-38 Transmission of Shares 8 & 9
39-41 Increase of Capital 9 & 10
42,43 Alteration of Capital 10
44,45 Reduction of Capital 10 & 11
46 General Meetings and Written Resolutions 11
47,48 Notice of General Meetings 11
49-55 Proceedings at General Meetings 12 & 13
56-67 Voting 13, 14 & 15
Bye-law Subject Page
- ------- ------- ----
68-73 Proxies and Corporate Representatives 15 & 16
74-76 Appointment and Removal of Directors 17
77 Resignation and Disqualification of Directors 17
78-80 Alternate Directors 18
81 Directors' Fees and Additional
Remuneration and Expenses 18 & 19
82 Directors' Interests 19 & 20
83-87 Powers and Duties of the Board 20 & 21
88-90 Delegation of the Board's Powers 21
91-99 Proceedings of the Board 21, 22 & 23
100 Officers 23
101 Minutes 23
102,103 Secretary and Resident Representative 24
104 The Seal 24
105-111 Dividends and Other Payments 24, 25 & 26
112 Reserves 26
113,114 Capitalisation of Profits 26 & 27
115 Record Dates 27
116-118 Accounting Records 27
119 Audit 28
120-122 Service of Notices and Other Documents 28
123 Winding Up 29
Bye-law Subject Page
- ------- ------- ----
124-131 Indemnity 29 & 30
132 Alteration of Bye-laws 31
B Y E - L A W S
of
Ship Finance International Limited
INTERPRETATION
- --------------
1. In these Bye-laws and any Schedule below unless the context otherwise
requires:
"Alternate Director" means such person or persons as shall be
appointed from time to time pursuant to Bye-law 78;
"Bermuda" means the Islands of Bermuda;
"Board" means the Board of Directors of the Company or the Directors
present at a meeting of Directors at which there is a quorum;
"the Companies Acts" means every Bermuda statute from time to time in
force concerning companies insofar as the same applies to the Company;
"Company" means the company incorporated in Bermuda under the name of
Ship Finance International Limited on the 10th day of October , 2003;
"Director" means such person or persons as shall be elected or
appointed to the Board from time to time pursuant to Bye-law 74,
Bye-law 75 or the Companies Acts;
"Independent Director" means a duly appointed member of the Board of
the Company who is not at the time of and during such appointment, and
has not been during the immediately preceding 24 months, (a) an
Officer, Director (other than of the Company) or employee, affiliate,
associate, material supplier or material customer of the Company or
any of its affiliates, or (b) a direct, indirect or shareholder or
beneficial owner of the Company or any of its affiliates;
"Memorandum of Association" means the Memorandum of Association of the
Company as amended from time to time;
"Officer" means such person or persons as shall be appointed from time
to time by the Board pursuant to Bye-law 100;
"paid up" means paid up or credited as paid up;
"Register" means the Register of Shareholders of the Company;
"Registered Office" means the registered office for the time being of
the Company;
"Resolution" means a resolution of the Shareholders or, where
required, of a separate class or separate classes of Shareholders,
adopted either in general meeting or by written resolution, in
accordance with the provisions of these Bye-laws;
"Seal" means the common seal of the Company and includes any duplicate
thereof;
"Secretary" includes a temporary or assistant Secretary and any person
appointed by the Board to perform any of the duties of the Secretary;
"Shareholder" means a shareholder or member of the Company;
"these Bye-laws" means these Bye-laws in their present form or as from
time to time amended;
for the purposes of these Bye-laws a corporation shall be deemed to be
present in person if its representative duly authorised pursuant to
the Companies Acts is present;
words importing only the singular number include the plural number and
vice versa;
words importing only the masculine gender include the feminine and
neuter genders respectively;
words importing persons include companies or associations or bodies of
persons, whether corporate or un-incorporate wherever established;
reference to writing shall include typewriting, printing, lithography,
photography and other modes of representing or reproducing words in a
legible and non-transitory form;
unless otherwise defined herein, any words or expressions defined in
the Companies Acts in force on the date when these Bye-laws, or any
part thereof, are adopted shall bear the same meaning in these Bye-laws
or such part (as the case may be); and
These Bye-laws shall be read subject to the provisions of the
Memorandum of Association and in the event of any ambiguity or
inconsistency, between the Memorandum of Association and these
Bye-laws, the provisions of the Memorandum of Association shall
prevail.
REGISTERED OFFICE
- -----------------
2. The Registered Office shall be at such place in Bermuda as the Board shall
from time to time appoint.
SHARE RIGHTS
- ------------
3. Subject to any special rights conferred on the holders of any share or
class of shares, any share in the Company may be issued with or have
attached thereto such preferred, deferred, qualified or other special
rights or such restrictions, whether in regard to dividend, voting, return
of capital or otherwise, as the Company may by Resolution determine or, if
there has not been any such determination or so far as the same shall not
make specific provision, as the Board may determine.
4. Subject to the Companies Acts, any preference shares may, with the sanction
of a Resolution, be issued on terms:
(a) that they are to be redeemed on the happening of a specified event or
on a given date; and/or,
(b) that they are liable to be redeemed at the option of the Company;
and/or,
(c) if authorised by the Memorandum of the Company, that they are liable
to be redeemed at the option of the holder.
The terms and manner of redemption shall be provided for by way of
amendment of these Bye-laws.
MODIFICATION OF RIGHTS
- ----------------------
5. Subject to the Companies Acts, all or any of the special rights for the
time being attached to any class of shares for the time being issued may
from time to time (whether or not the Company is being wound up) be altered
or abrogated with the consent in writing of the holders of not less than
seventy five percent of the issued shares of that class or with the
sanction of a resolution passed at a separate general meeting of the
holders of such shares voting in person or by proxy. To any such separate
general meeting, all the provisions of these Bye-laws as to general
meetings of the Company shall mutatis mutandis apply, but so that the
necessary quorum shall be two or more persons holding or representing by
proxy any of the shares of the relevant class, that every holder of shares
of the relevant class shall be entitled on a poll to one vote for every
such share held by him and that any holder of shares of the relevant class
present in person or by proxy may demand a poll; provided, however, that if
the Company or a class of Shareholders shall have only one Shareholder, one
Shareholder present in person or by proxy shall constitute the necessary
quorum.
6. 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
- ------
7. Subject to the provisions of these Bye-laws and to any rights attaching to
issued and outstanding shares, the unissued shares of the Company shall be
at the disposal of the Board, which may issue, offer, allot, exchange or
otherwise dispose of shares or options, warrants or other rights to
purchase shares or securities convertible into or exchangeable for shares
(including any employee benefit plan providing for the issuance of shares
or options, warrants or other rights in respect thereof), at such times,
for such consideration and on such terms and conditions as the Board may
determine (including, without limitation, such preferred or other special
rights or restrictions with respect to dividend, voting, liquidation or
other rights of the shares).
8. The Board may in connection with the issue of any shares exercise all
powers of paying commission and brokerage conferred or permitted by law.
9. Except as ordered by a court of competent jurisdiction or as required by
law, no person shall be recognised by the Company as holding any share upon
trust and the Company shall not be bound by or required in any way to
recognise (even when having notice thereof) any equitable, contingent,
future or partial interest in any share or any interest in any fractional
part of a share or (except only as otherwise provided in these Bye-laws or
by law) any other right in respect of any share except an absolute right to
the entirety thereof in the registered holder.
CERTIFICATES
- ------------
10. The preparation, issue and delivery of share certificates shall be governed
by the Companies Acts. In the case of a share held jointly by several
persons, delivery of a certificate to one of several joint holders shall be
sufficient delivery to all.
11. If a share certificate is defaced, lost or destroyed it may be replaced
without fee but on such terms (if any) as to evidence and indemnity and to
payment of the costs and out of pocket expenses of the Company in
investigating such evidence and preparing such indemnity as the Board may
think fit and, in case of defacement, on delivery of the old certificate to
the Company.
12. All certificates for share or loan capital or other securities of the
Company (other than letters of allotment, scrip certificates and other like
documents) shall, except to the extent that the terms and conditions for
the time being relating thereto otherwise provide, be issued under the
Seal. The Board may by resolution determine, either generally or in any
particular case, that any signatures on any such certificates need not be
autographic but may be affixed to such certificates by some mechanical
means or may be printed thereon or that such certificates need not be
signed by any persons.
LIEN
- ----
13. The Company shall have a first and paramount lien on every share (not being
a fully paid share) for all moneys, whether presently payable or not,
called or payable, at a date fixed by or in accordance with the terms of
issue of such share in respect of such share, and the Company shall also
have a first and paramount lien on every share (other than a fully paid
share) standing registered in the name of a Shareholder, whether singly or
jointly with any other person, for all the debts and liabilities of such
Shareholder or his estate to the Company, whether the same shall have been
incurred before or after notice to the Company of any interest of any
person other than such Shareholder, and whether the time for the payment or
discharge of the same shall have actually arrived or not, and
notwithstanding that the same are joint debts or liabilities of such
Shareholder or his estate and any other person, whether a Shareholder or
not. The Company's lien on a share shall extend to all dividends payable
thereon. The Board may at any time, either generally or in any particular
case, waive any lien that has arisen or declare any share to be wholly or
in part exempt from the provisions of this Bye-law.
14. The Company may sell, in such manner as the Board may think fit, any share
on which the Company has a lien but no sale shall be made unless some sum
in respect of which the lien exists is presently payable nor until the
expiration of fourteen days after a notice in writing, stating and
demanding payment of the sum presently payable and giving notice of the
intention to sell in default of such payment, has been served on the holder
for the time being of the share.
15. The net proceeds of sale by the Company of any shares on which it has a
lien shall be applied in or towards payment or discharge of the debt or
liability in respect of which the lien exists so far as the same is
presently payable, and any residue shall (subject to a like lien for debts
or liabilities not presently payable as existed upon the share prior to the
sale) be paid to the holder of the share immediately before such sale. For
giving effect to any such sale the Board may authorise some person to
transfer the share sold to the purchaser thereof. The purchaser shall be
registered as the holder of the share and he shall not be bound to see to
the application of the purchase money, nor shall his title to the share be
affected by any irregularity or invalidity in the proceedings relating to
the sale.
CALLS ON SHARES
- ---------------
16. The Board may from time to time make calls upon the Shareholders in respect
of any moneys unpaid on their shares (whether on account of the par value
of the shares or by way of premium) and not by the terms of issue thereof
made payable at a date fixed by or in accordance with such terms of issue,
and each Shareholder shall (subject to the Company serving upon him at
least fourteen days notice specifying the time or times and place of
payment) pay to the Company at the time or times and place so specified the
amount called on his shares. A call may be revoked or postponed as the
Board may determine.
17. A call may be made payable by installments and shall be deemed to have been
made at the time when the resolution of the Board authorizing the call was
passed.
18. The joint holders of a share shall be jointly and severally liable to pay
all calls in respect thereof.
19. If a sum called in respect of the share shall not be paid before or on the
day appointed for payment thereof the person from whom the sum is due shall
pay interest on the sum from the day appointed for the payment thereof to
the time of actual payment at such rate as the Board may determine, but the
Board shall be at liberty to waive payment of such interest wholly or in
part.
20. Any sum which, by the terms of issue of a share, becomes payable on
allotment or at any date fixed by or in accordance with such terms of
issue, whether on account of the nominal amount of the share or by way of
premium, shall for all the purposes of these Bye-laws be deemed to be a
call duly made, notified and payable on the date on which, by the terms of
issue, the same becomes payable and, in case of non-payment, all the
relevant provisions of these Bye-laws as to payment of interest, forfeiture
or otherwise shall apply as if such sum had become payable by virtue of a
call duly made and notified.
21. The Board may on the issue of shares differentiate between the allottees or
holders as to the amount of calls to be paid and the times of payment.
FORFEITURE OF SHARES
- --------------------
22. If a Shareholder fails to pay any call or installment of a call on the day
appointed for payment thereof, the Board may at any time thereafter during
such time as any part of such call or installment remains unpaid serve a
notice on him requiring payment of so much of the call or installment as is
unpaid, together with any interest which may have accrued.
23. The notice shall name a further day (not being less than 14 days from the
date of the notice) on or before which, and the place where, the payment
required by the notice is to be made and shall state that, in the event of
non-payment on or before the day and at the place appointed, the shares in
respect of which such call is made or installment is payable will be liable
to be forfeited. The Board may accept the surrender of any share liable to
be forfeited hereunder and, in such case, references in these Bye-laws to
forfeiture shall include surrender.
24. If the requirements of any such notice as aforesaid are not complied with,
any share in respect of which such notice has been given may at any time
thereafter, before payment of all calls or installments and interest due in
respect thereof has been made, be forfeited by a resolution of the Board to
that effect. Such forfeiture shall include all dividends declared in
respect of the forfeited shares and not actually paid before the
forfeiture.
25. When any share has been forfeited, notice of the forfeiture shall be served
upon the person who was before forfeiture the holder of the share; but no
forfeiture shall be in any manner invalidated by any omission or neglect to
give such notice as aforesaid.
26. A forfeited share shall be deemed to be the property of the Company and may
be sold, re-offered or otherwise disposed of either to the person who was,
before forfeiture, the holder thereof or entitled thereto or to any other
person upon such terms and in such manner as the Board shall think fit, and
at any time before a sale, re-allotment or disposition the forfeiture may
be cancelled on such terms as the Board may think fit.
27. A person whose shares have been forfeited shall thereupon cease to be a
Shareholder in respect of the forfeited shares but shall, notwithstanding
the forfeiture, remain liable to pay to the Company all moneys which at the
date of forfeiture were presently payable by him to the Company in respect
of the shares with interest thereon at such rate as the Board may determine
from the date of forfeiture until payment, and the Company may enforce
payment without being under any obligation to make any allowance for the
value of the shares forfeited.
28. An affidavit in writing that the deponent is a Director or the Secretary
and that a share has been duly forfeited on the date stated in the
affidavit shall be conclusive evidence of the facts therein stated as
against all persons claiming to be entitled to the share. The Company may
receive the consideration (if any) given for the share on the sale,
re-allotment or disposition thereof and the Board may authorise some person
to transfer the share to the person to whom the same is sold, re-allotted
or disposed of, and he shall thereupon be registered as the holder of the
share and shall not be bound to see to the application of the purchase
money (if any) nor shall his title to the share be affected by any
irregularity or invalidity in the proceedings relating to the forfeiture,
sale, re-allotment or disposal of the share.
REGISTER OF SHAREHOLDERS
- ------------------------
29. The Secretary shall establish and maintain the Register of Shareholders in
the manner prescribed by the Companies Acts. Unless the Board otherwise
determines, the Register of Shareholders shall be open to inspection in the
manner prescribed by the Companies Acts between 10.00 a.m. and 12.00 noon
on every working day. Unless the Board otherwise determines, no Shareholder
or intending Shareholder shall be entitled to have entered in the Register
any indication of any trust or any equitable, contingent, future or partial
interest in any share or any interest in any fractional part of a share and
if any such entry exists or is permitted by the Board it shall not be
deemed to abrogate any of the provisions of Bye-law 9.
REGISTER OF DIRECTORS AND OFFICERS
- ----------------------------------
30. The Secretary shall establish and maintain a register of the Directors and
Officers of the Company as required by the Companies Acts. The register of
Directors and Officers shall be open to inspection in the manner prescribed
by the Companies Acts between 10:00 a.m. and 12:00 noon on every working
day.
TRANSFER OF SHARES
- ------------------
31. Subject to the Companies Acts and to such of the restrictions contained in
these Bye-laws as may be applicable, any Shareholder may transfer all or
any of his shares by an instrument of transfer in the usual common form or
in any other form which the Board may approve.
32. The instrument of transfer of a share shall be signed by or on behalf of
the transferor and where any share is not fully-paid the transferee, and
the transferor shall be deemed to remain the holder of the share until the
name of the transferee is entered in the Register in respect thereof. All
instruments of transfer when registered may be retained by the Company. The
Board may, in its absolute discretion and without assigning any reason
therefor, decline to register any transfer of any share which is not a
fully-paid share.
The Board may also decline to register any transfer unless:-
(a) the instrument of transfer is duly stamped and lodged with the
Company, accompanied by the certificate for the shares to which it
relates, and such other evidence as the Board may reasonably require
to show the right of the transferor to make the transfer,
(b) the instrument of transfer is in respect of only one class of share,
(c) where applicable, the permission of the Bermuda Monetary Authority
with respect thereto has been obtained.
Subject to any directions of the Board from time to time in force, the
Secretary may exercise the powers and discretions of the Board under this
Bye-law and Bye-law 31.
33. If the Board declines to register a transfer it shall, within three months
after the date on which the instrument of transfer was lodged, send to the
transferee notice of such refusal.
34. No fee shall be charged by the Company for registering any transfer,
probate, letters of administration, certificate of death or marriage, power
of attorney, distringas or stop notice, order of court or other instrument
relating to or affecting the title to any share, or otherwise making an
entry in the Register relating to any share.
TRANSMISSION OF SHARES
- ----------------------
35. In the case of the death of a Shareholder, the survivor or survivors, where
the deceased was a joint holder, and the estate representative, where he
was sole holder, shall be the only person recognised by the Company as
having any title to his shares; but nothing herein contained shall release
the estate of a deceased holder (whether the sole or joint) from any
liability in respect of any share held by him solely or jointly with other
persons. For the purpose of this Bye-law, estate representative means the
person to whom probate or letters of administration has or have been
granted in Bermuda or, failing any such person, such other person as the
Board may in its absolute discretion determine to be the person recognised
by the Company for the purpose of this Bye-law.
36. Any person becoming entitled to a share in consequence of the death of a
Shareholder or otherwise by operation of applicable law may, subject as
hereafter provided and upon such evidence being produced as may from time
to time be required by the Board as to his entitlement, either be
registered himself as the holder of the share or elect to have some person
nominated by him registered as the transferee thereof. If the person so
becoming entitled elects to be registered himself, he shall deliver or send
to the Company a notice in writing signed by him stating that he so elects.
If he shall elect to have his nominee registered, he shall signify his
election by signing an instrument of transfer of such share in favour of
his nominee. All the limitations, restrictions and provisions of these
Bye-laws relating to the right to transfer and the registration of transfer
of shares shall be applicable to any such notice or instrument of transfer
as aforesaid as if the death of the Shareholder or other event giving rise
to the transmission had not occurred and the notice or instrument of
transfer was an instrument of transfer signed by such Shareholder.
37. A person becoming entitled to a share in consequence of the death of a
Shareholder or otherwise by operation of applicable law shall (upon such
evidence being produced as may from time to time be required by the Board
as to his entitlement) be entitled to receive and may give a discharge for
any dividends or other moneys payable in respect of the share, but he shall
not be entitled in respect of the share to receive notices of or to attend
or vote at general meetings of the Company or, save as aforesaid, to
exercise in respect of the share any of the rights or privileges of a
Shareholder until he shall have become registered as the holder thereof.
The Board may at any time give notice requiring such person to elect either
to be registered himself or to transfer the share and if the notice is not
complied with within sixty days the Board may thereafter withhold payment
of all dividends and other moneys payable in respect of the shares until
the requirements of the notice have been complied with.
38. Subject to any directions of the Board from time to time in force, the
Secretary may exercise the powers and discretions of the Board under
Bye-laws 35, 36 and 37.
INCREASE OF CAPITAL
- -------------------
39. The Company may from time to time increase its capital by such sum to be
divided into shares of such par value as the Company by Resolution shall
prescribe.
40. The Company may, by the Resolution increasing the capital, direct that the
new shares or any of them shall be offered in the first instance either at
par or at a premium or (subject to the provisions of the Companies Acts) at
a discount to all the holders for the time being of shares of any class or
classes in proportion to the number of such shares held by them
respectively or make any other provision as to the issue of the new shares.
41. The new shares shall be subject to all the provisions of these Bye-laws
with reference to lien, the payment of calls, forfeiture, transfer,
transmission and otherwise.
ALTERATION OF CAPITAL
- ---------------------
42. The Company may from time to time by Resolution:-
(a) divide its shares into several classes and attach thereto respectively
any preferential, deferred, qualified or special rights, privileges or
conditions;
(b) consolidate and divide all or any of its share capital into shares of
larger par value than its existing shares;
(c) sub-divide its shares or any of them into shares of smaller par value
than is fixed by its memorandum, so, however, that in the sub-division
the proportion between the amount paid and the amount, if any, unpaid
on each reduced share shall be the same as it was in the case of the
share from which the reduced share is derived;
(d) make provision for the issue and allotment of shares which do not
carry any voting rights;
(e) cancel shares which, at the date of the passing of the Resolution in
that behalf, have not been taken or agreed to be taken by any person,
and diminish the amount of its share capital by the amount of the
shares so cancelled; and (f) change the currency denomination of its
share capital.
Where any difficulty arises in regard to any division, consolidation, or
sub-division under this Bye-law, the Board may settle the same as it thinks
expedient and, in particular, may arrange for the sale of the shares
representing fractions and the distribution of the net proceeds of sale in
due proportion amongst the Shareholders who would have been entitled to the
fractions, and for this purpose the Board may authorise some person to
transfer the shares representing fractions to the purchaser thereof, who
shall not be bound to see to the application of the purchase money nor
shall his title to the shares be affected by any irregularity or invalidity
in the proceedings relating to the sale.
43. Subject to the Companies Acts and to any confirmation or consent required
by law or these Bye-laws, the Company may by Resolution from time to time
convert any preference shares into redeemable preference shares.
REDUCTION OF CAPITAL
- --------------------
44. Subject to the Companies Acts, its memorandum and any confirmation or
consent required by law or these Bye-laws, the Company may from time to
time by Resolution authorise the reduction of its issued share capital or
any capital redemption reserve fund or any share premium or contributed
surplus account in any manner.
45. In relation to any such reduction, the Company may by Resolution determine
the terms upon which such reduction is to be effected including in the case
of a reduction of part only of a class of shares, those shares to be
affected.
GENERAL MEETINGS AND WRITTEN RESOLUTIONS
- ----------------------------------------
46. (a) The Board shall convene and the Company shall hold general meetings as
Annual General Meetings in accordance with the requirements of the
Companies Acts at such times and places as the Board shall appoint.
The Board may, whenever it thinks fit, and shall, when required by the
Companies Acts, convene general meetings other than Annual General
Meetings which shall be called Special General Meetings.
(b) Except in the case of the removal of auditors and Directors, anything
which may be done by resolution of the Company in general meeting or
by resolution of a meeting of any class of the Shareholders of the
Company may, without a meeting and without any previous notice being
required, be done by resolution in writing, signed by all of the
Shareholders or their proxies, or in the case of a Shareholder that is
a corporation (whether or not a company within the meaning of the
Companies Acts) on behalf of such Shareholder, being all of the
Shareholders of the Company who at the date of the resolution in
writing would be entitled to attend a meeting and vote on the
resolution. Such resolution in writing may be signed by, or in the
case of a Shareholder that is a corporation (whether or not a company
within the meaning of the Companies Acts), on behalf of, all the
Shareholders of the Company, or any class thereof, in as many
counterparts as may be necessary.
(c) For the purposes of this Bye-law, the date of the resolution in
writing is the date when the resolution is signed by, or in the case
of a Shareholder that is a corporation (whether or not a company
within the meaning of the Companies Acts), on behalf of, the last
Shareholder to sign and any reference in any enactment to the date of
passing of a resolution is, in relation to a resolution in writing
made in accordance with this Bye-law, a reference to such date.
(d) A resolution in writing made in accordance with this Bye-law is as
valid as if it had been passed by the Company in general meeting or,
if applicable, by a meeting of the relevant class of Shareholders of
the Company, as the case may be. A resolution in writing made in
accordance with this Bye-law shall constitute minutes for the purposes
of the Companies Acts and these Bye-laws.
NOTICE OF GENERAL MEETINGS
- --------------------------
47. An Annual General Meeting shall be called by not less than 5 days notice in
writing and a Special General Meeting shall be called by not less than 5
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, day and time of the meeting, and, in the case
of a Special General Meeting, the general nature of the business to be
considered. Notice of every general meeting shall be given in any manner
permitted by Bye-laws 120 and 121 to all Shareholders other than such as,
under the provisions of these Bye-laws or the terms of issue of the shares
they hold, are not entitled to receive such notice from the Company.
Notwithstanding that a meeting of the Company is called by shorter notice
than that specified in this Bye-law, it shall be deemed to have been duly
called if it is so agreed:-
(a) in the case of a meeting called as an Annual General Meeting, by
all the Shareholders entitled to attend and vote thereat;
(b) in the case of any other meeting, by a majority in number of the
Shareholders having the right to attend and vote at the meeting,
being a majority together holding not less than 95 percent in
nominal value of the shares giving that right;
provided that notwithstanding any provision of these Bye-Laws, no
Shareholder shall be entitled to attend any general meeting unless notice
in writing of the intention to attend and vote in person or by proxy signed
by or on behalf of the Shareholder (together with the power of attorney or
other authority, if any, under which it is signed or a notarially certified
copy thereof) addressed to the Secretary is deposited (by post, courier,
facsimile transmission or other electronic means) at the Registered Office
at least 48 hours before the time appointed for holding the general meeting
or adjournment thereof.
48. The accidental omission to give notice of a meeting or (in cases where
instruments of proxy are sent out with the notice) the accidental omission
to send such instrument of proxy to, or the non-receipt of notice of a
meeting or such instrument of proxy by, any person entitled to receive such
notice shall not invalidate the proceedings at that meeting.
PROCEEDINGS AT GENERAL MEETINGS
- -------------------------------
49. No business shall be transacted at any general meeting unless a quorum is
present when the meeting proceeds to business, but the absence of a quorum
shall not preclude the appointment, choice or election of a chairman, which
shall not be treated as part of the business of the meeting. Save as
otherwise provided by these Bye-laws, the quorum at any general meeting
shall be constituted by one or more shareholders, either present in person
or by proxy, holding in aggregate shares carrying 33 1/3% of the voting
rights entitled to be exercised at such meeting.
50. If within five minutes (or such longer time as the chairman of the meeting
may determine to wait) after the time appointed for the meeting, a quorum
is not present, the meeting, if convened on the requisition of
Shareholders, shall be dissolved. In any other case, it shall stand
adjourned to such other day and such other time and place as the chairman
of the meeting may determine and at such adjourned meeting two Shareholders
present in person or by proxy (whatever the number of shares held by them)
shall be a quorum provided that if the Company shall have only one
Shareholder, one Shareholder present in person or by proxy shall constitute
the necessary quorum. The Company shall give not less than 5 days notice of
any meeting adjourned through want of a quorum and such notice shall state
that the sole Shareholder or, if more than one, two Shareholders present in
person or by proxy (whatever the number of shares held by them) shall be a
quorum.
51. A meeting of the Shareholders or any class thereof may be held by means of
such telephone, electronic or other communication facilities as permit all
persons participating in the meeting to communicate with each other
simultaneously and instantaneously and participation in such a meeting
shall constitute presence in person at such meeting.
52. Each Director shall be entitled to attend and speak at any general meeting
of the Company.
53. The Chairman (if any) of the Board or, in his absence, the President shall
preside as chairman at every general meeting. If there is no such Chairman
or President, or if at any meeting neither the Chairman nor the President
is present within five minutes after the time appointed for holding the
meeting, or if neither of them is willing to act as chairman, the Directors
present shall choose one of their number to act or if one Director only is
present he shall preside as chairman if willing to act. If no Director is
present, or if each of the Directors present declines to take the chair,
the persons present and entitled to vote on a poll shall elect one of their
number to be chairman.
54. The chairman of the meeting may, with the consent of any meeting at which a
quorum is present (and shall if so directed by the meeting), adjourn the
meeting from time to time and from place to place but no business shall be
transacted at any adjourned meeting except business which might lawfully
have been transacted at the meeting from which the adjournment took place.
When a meeting is adjourned for three months or more, notice of the
adjourned meeting shall be given as in the case of an original meeting.
55. Save as expressly provided by these Bye-laws, it shall not be necessary to
give any notice of an adjournment or of the business to be transacted at an
adjourned meeting.
VOTING
- ------
56. Save where a greater majority is required by the Companies Acts or these
Bye-laws, any question proposed for consideration at any general meeting
shall be decided on by a simple majority of votes cast.
57. At any general meeting, a resolution put to the vote of the meeting shall
be decided on a show of hands unless (before or on the declaration of the
result of the show of hands or on the withdrawal of any other demand for a
poll) a poll is demanded by:-
(a) the chairman of the meeting; or
(b) at least three Shareholders present in person or represented by
proxy; or
(c) any Shareholder or Shareholders present in person or represented
by proxy and holding between them not less than one tenth of the
total voting rights of all the Shareholders having the right to
vote at such meeting; or
(d) a Shareholder or Shareholders present in person or represented by
proxy holding shares conferring the right to vote at such
meeting, being shares on which an aggregate sum has been paid up
equal to not less than one tenth of the total sum paid up on all
such shares conferring such right.
Unless a poll is so demanded and the demand is not withdrawn, a declaration
by the chairman that a resolution has, on a show of hands, been carried or
carried unanimously or by a particular majority or not carried by a
particular majority or lost shall be final and conclusive, and an entry to
that effect in the minute book of the Company shall be conclusive evidence
of the fact without proof of the number of votes recorded for or against
such resolution.
58. If a poll is duly demanded, the result of the poll shall be deemed to be
the resolution of the meeting at which the poll is demanded.
59. A poll demanded on the election of a chairman, or on a question of
adjournment, shall be taken forthwith. A poll demanded on any other
question shall be taken in such manner and either forthwith or at such time
(being not later than three months after the date of the demand) and place
as the chairman shall direct. It shall not be necessary (unless the
chairman otherwise directs) for notice to be given of a poll.
60. The demand for a poll shall not prevent the continuance of a meeting for
the transaction of any business other than the question on which the poll
has been demanded and it may be withdrawn at any time before the close of
the meeting or the taking of the poll, whichever is the earlier.
61. On a poll, votes may be cast either personally or by proxy.
62. A person entitled to more than one vote on a poll need not use all his
votes or cast all the votes he uses in the same way.
63. In the case of an equality of votes at a general meeting, whether on a show
of hands or on a poll, the chairman of such meeting shall not be entitled
to a second or casting vote.
64. In the case of joint holders of a share, the vote of the senior who tenders
a vote, whether in person or by proxy, shall be accepted to the exclusion
of the votes of the other joint holders, and for this purpose seniority
shall be determined by the order in which the names stand in the Register
in respect of the joint holding.
65. A Shareholder who is a patient for any purpose of any statute or applicable
law relating to mental health or in respect of whom an order has been made
by any Court having jurisdiction for the protection or management of the
affairs of persons incapable of managing their own affairs may vote,
whether on a show of hands or on a poll, by his receiver, committee,
curator bonis or other person in the nature of a receiver, committee or
curator bonis appointed by such Court and such receiver, committee, curator
bonis or other person may vote on a poll by proxy, and may otherwise act
and be treated as such Shareholder for the purpose of general meetings.
66. No Shareholder shall, unless the Board otherwise determines, be entitled to
vote at any general meeting unless all calls or other sums presently
payable by him in respect of shares in the Company have been paid.
67. If (i) any objection shall be raised to the qualification of any voter or
(ii) any votes have been counted which ought not to have been counted or
which might have been rejected or (iii) any votes are not counted which
ought to have been counted, the objection or error shall not vitiate the
decision of the meeting or adjourned meeting on any resolution unless the
same is raised or pointed out at the meeting or, as the case may be, the
adjourned meeting at which the vote objected to is given or tendered or at
which the error occurs. Any objection or error shall be referred to the
chairman of the meeting and shall only vitiate the decision of the meeting
on any resolution if the chairman decides that the same may have affected
the decision of the meeting. The decision of the chairman on such matters
shall be final and conclusive.
PROXIES AND CORPORATE REPRESENTATIVES
- -------------------------------------
68. The instrument appointing a proxy shall be in writing under the hand of the
appointor or of his attorney authorised by him in writing or, if the
appointor is a corporation, either under its seal or under the hand of an
officer, attorney or other person authorised to sign the same.
69. Any Shareholder may appoint a standing proxy or (if a corporation)
representative by depositing at the Registered Office a proxy or (if a
corporation) an authorisation and such proxy or authorisation shall be
valid for all general meetings and adjournments thereof or, resolutions in
writing, as the case may be, until notice of revocation is received at the
Registered Office. Where a standing proxy or authorisation exists, its
operation shall be deemed to have been suspended at any general meeting or
adjournment thereof at which the Shareholder is present or in respect to
which the Shareholder has specially appointed a proxy or representative.
The Board may from time to time require such evidence as it shall deem
necessary as to the due execution and continuing validity of any such
standing proxy or authorisation and the operation of any such standing
proxy or authorisation shall be deemed to be suspended until such time as
the Board determines that it has received the requested evidence or other
evidence satisfactory to it.
70. Subject to Bye-law 69, the instrument appointing a proxy together with such
other evidence as to its due execution as the Board may from time to time
require, shall be delivered at the Registered Office (or at such place as
may be specified in the notice convening the meeting or in any notice of
any adjournment or, in either case or the case of a written resolution, in
any document sent therewith) prior to the holding of the relevant meeting
or adjourned meeting at which the person named in the instrument proposes
to vote or, in the case of a poll taken subsequently to the date of a
meeting or adjourned meeting, before the time appointed for the taking of
the poll, or, in the case of a written resolution, prior to the effective
date of the written resolution and in default the instrument of proxy shall
not be treated as valid.
71. Instruments of proxy shall be in any common form or in such other form as
the Board may approve and the Board may, if it thinks fit, send out with
the notice of any meeting or any written resolution forms of instruments of
proxy for use at that meeting or in connection with that written
resolution. The instrument of proxy shall be deemed to confer authority to
demand or join in demanding a poll and to vote on any amendment of a
written resolution or amendment of a resolution put to the meeting for
which it is given as the proxy thinks fit. The instrument of proxy shall
unless the contrary is stated therein be valid as well for any adjournment
of the meeting as for the meeting to which it relates.
72. A vote given in accordance with the terms of an instrument of proxy shall
be valid notwithstanding the previous death or insanity of the principal,
or revocation of the instrument of proxy or of the authority under which it
was executed, provided that no intimation in writing of such death,
insanity or revocation shall have been received by the Company at the
Registered Office (or such other place as may be specified for the delivery
of instruments of proxy in the notice convening the meeting or other
documents sent therewith) one hour at least before the commencement of the
meeting or adjourned meeting, or the taking of the poll, or the day before
the effective date of any written resolution at which the instrument of
proxy is used.
73. Subject to the Companies Acts, the Board may at its discretion waive any of
the provisions of these Bye-laws related to proxies or authorisations and,
in particular, may accept such verbal or other assurances as it thinks fit
as to the right of any person to attend and vote on behalf of any
Shareholder at general meetings or to sign written resolutions.
APPOINTMENT AND REMOVAL OF DIRECTORS
- ------------------------------------
74. The number of Directors shall be such number not less than two as the
Company by Resolution may from time to time determine and, subject to the
Companies Acts and these Bye-laws, shall serve until re-elected or their
successors are appointed at the next Annual General Meeting. The Board of
Directors shall include at least one Independent Director. If an
Independent Director resigns, dies, or becomes incapacitated, or such
position is otherwise vacant, and there are no other Independent Directors,
no action requiring affirmative vote of the Independent Directors shall be
taken until a successor Independent Director is elected and qualified and
approves such action. A successor Independent Director shall be appointed
by the remaining directors on the Board. No Independent Director may be
removed unless and until his or her successor is appointed and has accepted
such position.
75. The Company shall at the Annual General Meeting and may by Resolution
determine the minimum and the maximum number of Directors and may by
Resolution determine that one or more vacancies in the Board shall be
deemed casual vacancies for the purposes of these Bye-laws. Without
prejudice to the power of the Company by Resolution in pursuance of any of
the provisions of these Bye-laws to appoint any person to be a Director,
the Board, so long as a quorum of Directors remains in office, shall have
power at any time and from time to time to appoint any individual to be a
Director so as to fill a casual vacancy.
76. The Company may in a Special General Meeting called for that purpose remove
a Director provided notice of any such meeting shall be served upon the
Director concerned not less than 14 days before the meeting and he shall be
entitled to be heard at that meeting. Any vacancy created by the removal of
a Director at a Special General Meeting may be filled at the Meeting by the
election of another Director in his place or, in the absence of any such
election, by the Board.
RESIGNATION AND DISQUALIFICATION OF DIRECTORS
- ---------------------------------------------
77. The office of a Director shall be vacated upon the happening of any of the
following events:
(a) if he resigns his office by notice in writing delivered to the
Registered Office or tendered at a meeting of the Board;
(b) if he becomes of unsound mind or a patient for any purpose of any
statute or applicable law relating to mental health and the Board
resolves that his office is vacated;
(c) if he becomes bankrupt or compounds with his creditors;
(d) if he is prohibited by law from being a Director;
(e) if he ceases to be a Director by virtue of the Companies Acts or is
removed from office pursuant to these Bye-laws.
ALTERNATE DIRECTORS
- -------------------
78. The Company may by Resolution elect any person or persons to act as
Directors in the alternative to any of the Directors or may authorise the
Board to appoint such Alternate Directors and a Director may appoint and
remove his own Alternate Director. Any appointment or removal of an
Alternate Director by a Director shall be effected by depositing a notice
of appointment or removal with the Secretary at the Registered Office,
signed by such Director, and such appointment or removal shall become
effective on the date of receipt by the Secretary. Any Alternate Director
may be removed by Resolution of the Company and, if appointed by the Board,
may be removed by the Board. Subject as aforesaid, the office of Alternate
Director shall continue until the next annual election of Directors or, if
earlier, the date on which the relevant Director ceases to be a Director.
An Alternate Director may also be a Director in his own right and may act
as alternate to more than one Director.
79. An Alternate Director shall be entitled to receive notices of all meetings
of Directors, to attend, be counted in the quorum and vote at any such
meeting at which any Director to whom he is alternate is not personally
present, and generally to perform all the functions of any Director to whom
he is alternate in his absence.
80. Every person acting as an Alternate Director shall (except as regards
powers to appoint an alternate and remuneration) be subject in all respects
to the provisions of these Bye-laws relating to Directors and shall alone
be responsible to the Company for his acts and defaults and shall not be
deemed to be the agent of or for any Director for whom he is alternate. An
Alternate Director may be paid expenses and shall be entitled to be
indemnified by the Company to the same extent mutatis mutandis as if he
were a Director. Every person acting as an Alternate Director shall have
one vote for each Director for whom he acts as alternate (in addition to
his own vote if he is also a Director). The signature of an Alternate
Director to any resolution in writing of the Board or a committee of the
Board shall, unless the terms of his appointment provides to the contrary,
be as effective as the signature of the Director or Directors to whom he is
alternate.
DIRECTORS' FEES AND ADDITIONAL REMUNERATION AND EXPENSES
- --------------------------------------------------------
81. The amount, if any, of Directors' fees shall from time to time be
determined by the Company by Resolution and in the absence of a
determination to the contrary in general meeting, such fees shall be deemed
to accrue from day to day. Each Director may be paid his reasonable
travelling, hotel and incidental expenses in attending and returning from
meetings of the Board or committees constituted pursuant to these Bye-laws
or general meetings and shall be paid all expenses properly and reasonably
incurred by him in the conduct of the Company's business or in the
discharge of his duties as a Director. Any Director who, by request, goes
or resides abroad for any purposes of the Company or who performs services
which in the opinion of the Board go beyond the ordinary duties of a
Director may be paid such extra remuneration (whether by way of salary,
commission, participation in profits or otherwise) as the Board may
determine, and such extra remuneration shall be in addition to any
remuneration provided for by or pursuant to any other Bye-law.
DIRECTORS' INTERESTS
- --------------------
82. (a) A Director may hold any other office or place of profit with the
Company (except that of auditor) in conjunction with his office of
Director for such period and upon such terms as the Board may
determine, and may be paid such extra remuneration therefor (whether
by way of salary, commission, participation in profits or otherwise)
as the Board may determine, and such extra remuneration shall be in
addition to any remuneration provided for by or pursuant to any other
Bye-law.
(b) A Director may act by himself or his firm in a professional capacity
for the Company (otherwise than as auditor) and he or his firm shall
be entitled to remuneration for professional services as if he were
not a Director.
(c) Subject to the Companies Acts, a Director may notwithstanding his
office be a party to, or otherwise interested in, any transaction or
arrangement with the Company or in which the Company is otherwise
interested; and be a Director or other officer of, or employed by, or
a party to any transaction or arrangement with, or otherwise
interested in, any body corporate promoted by the Company or in which
the Company is interested. The Board may also cause the voting power
conferred by the shares in any other company held or owned by the
Company to be exercised in such manner in all respects as it thinks
fit, including the exercise thereof in favour of any resolution
appointing the Directors or any of them to be directors or officers of
such other company, or voting or providing for the payment of
remuneration to the directors or officers of such other company.
(d) So long as, where it is necessary, he declares the nature of his
interest at the first opportunity at a meeting of the Board or by
writing to the Directors as required by the Companies Acts, a Director
shall not by reason of his office be accountable to the Company for
any benefit which he derives from any office or employment to which
these Bye-laws allow him to be appointed or from any transaction or
arrangement in which these Bye-laws allow him to be interested, and no
such transaction or arrangement shall be liable to be avoided on the
ground of any interest or benefit.
(e) Subject to the Companies Acts and any further disclosure required
thereby, a general notice to the Directors by a Director or officer
declaring that he is a director or officer or has an interest in a
person and is to be regarded as interested in any transaction or
arrangement made with that person, shall be a sufficient declaration
of interest in relation to any transaction or arrangement so made.
POWERS AND DUTIES OF THE BOARD
- ------------------------------
83. The Board shall manage the business of the Company in accordance with the
requirements and limitations contained in Bye-laws 83(A) and 83(B) and in
the event of any conflict between Bye-laws 83(A) and 83(B) and any other
Bye-law, the provisions of Bye-laws 83(A) and 83(B) shall prevail. Subject
to the provisions of the Companies Acts and to Bye-laws 83(A) and 83(B) and
these Bye-laws and to any directions given by the Company by Resolution,
responsibility for the management of the Company shall be vested in the
Board of Directors. The Board may pay all expenses incurred in promoting
and incorporating the Company and may exercise all the powers of the
Company. No alteration of these Bye-laws and no such direction shall
invalidate any prior act of the Board which would have been valid if that
alteration had not been made or that direction had not been given. The
powers given by this Bye-law shall not be limited by any special power
given to the Board by these Bye-laws and a meeting of the Board at which a
quorum is present shall be competent to exercise all the powers,
authorities and discretions for the time being vested in or exercisable by
the Board.
83(A) Notwithstanding anything to the contrary in these Bye-laws, the business
of the Company shall be restricted to the business purposes set forth in
the Memorandum of Association of the Company. The Board shall procure that
the Company shall only transact the aforementioned business and any
business necessary or incidental to the foregoing business purposes.
83(B) The Board shall procure that the Company shall at all times: (a) maintain
books and records separate from any other person or entity; (b) conduct its
own business in its own name; (c) maintain its accounts separate from any
other person or entity; (d) maintain separate financial statements; (e)
maintain its funds and assets separately from the assets of any other
person or entity; (f) not commingle its money, cheques, cash proceeds or
other assets with those of any other person or entity; (g) pay its own
liabilities out of its own funds; (h) observe all corporate formalities;
(i) use separate stationery, invoices, and cheques; (j) allocate fairly and
reasonably any overhead for shared office space; (k) hold itself out as a
separate entity; (l) correct any known misunderstanding regarding its
separate identity; (m) maintain adequate capital in light of its
contemplated business operations; and (n) hold appropriate and regular
meetings of the Board of Directors to authorize all corporate actions.
84. The Board may exercise all the powers of the Company to borrow money and to
mortgage or charge all or any part of the undertaking, property and assets
(present and future) and uncalled capital of the Company and to issue
debentures and other securities, whether outright or as collateral security
for any debt, liability or obligation of the Company.
85. All cheques, promissory notes, drafts, bills of exchange and other
instruments, whether negotiable or transferable or not, and all receipts
for money paid to the Company shall be signed, drawn, accepted, endorsed or
otherwise executed, as the case may be, in such manner as the Board shall
from time to time by resolution determine.
86. The Board on behalf of the Company may provide benefits, whether by the
payment of gratuities or pensions or otherwise, for any person including
any Director or former Director who has held any executive office or
employment with the Company or with any body corporate which is or has been
a subsidiary or affiliate of the Company or a predecessor in the business
of the Company or of any such subsidiary or affiliate, and to any member of
his family or any person who is or was dependent on him, and may contribute
to any fund and pay premiums for the purchase or provision of any such
gratuity, pension or other benefit, or for the insurance of any such
person.
87. The Board may from time to time appoint one or more of its body to hold any
other employment or executive office with the Company for such period and
upon such terms as the Board may determine and may revoke or terminate any
such appointments. Any such revocation or termination as aforesaid shall be
without prejudice to any claim for damages that such Director may have
against the Company or the Company may have against such Director for any
breach of any contract of service between him and the Company which may be
involved in such revocation or termination. Any person so appointed shall
receive such remuneration (if any) (whether by way of salary, commission,
participation in profits or otherwise) as the Board may determine, and
either in addition to or in lieu of his remuneration as a Director.
DELEGATION OF THE BOARD'S POWERS
- --------------------------------
88. The Board may by power of attorney appoint any company, firm or person or
any fluctuating body of persons, whether nominated directly or indirectly
by the Board, to be the attorney or attorneys of the Company for such
purposes and with such powers, authorities and discretions (not exceeding
those vested in or exercisable by the Board under these Bye-laws) and for
such period and subject to such conditions as it may think fit, and any
such power of attorney may contain such provisions for the protection and
convenience of persons dealing with any such attorney and of such attorney
as the Board may think fit, and may also authorise any such attorney to
sub-delegate all or any of the powers, authorities and discretions vested
in him.
89. The Board may entrust to and confer upon any Director or officer any of the
powers exercisable by it upon such terms and conditions with such
restrictions as it thinks fit, and either collaterally with, or to the
exclusion of, its own powers, and may from time to time revoke or vary all
or any of such powers but no person dealing in good faith and without
notice of such revocation or variation shall be affected thereby.
90. The Board may delegate any of its powers, authorities and discretions to
any person or to committees, consisting of such person or persons (whether
a member or members of its body or not) as it thinks fit. Any committee so
formed shall, in the exercise of the powers, authorities and discretions so
delegated, conform to any regulations which may be imposed upon it by the
Board.
PROCEEDINGS OF THE BOARD
- ------------------------
91. The Board may meet for the despatch of business, adjourn and otherwise
regulate its meetings as it thinks fit. Questions arising at any meeting
shall be determined by a majority of votes. In the case of an equality of
votes the motion shall be deemed to have been lost. A Director may, and the
Secretary on the requisition of a Director shall, at any time summon a
meeting of the Board. Notwithstanding anything to the contrary contained in
these Bye-laws, the prior approval of a resolution passed by a majority of
Directors (which majority shall include the approval of a majority of the
Independent Directors) or a unanimous written resolution of the Directors
(which shall include the approval of the Independent Directors) shall be
required in the following circumstances (a) to file a bankruptcy or
insolvency petition or otherwise institute insolvency proceedings on behalf
of the Company, (b) to consent to the institution of bankruptcy or
insolvency proceedings against the Company, (c) to enter into any agreement
or other arrangement conferring any authority or other entitlement on any
person to appoint a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or a substantial part of the
property of the Company, (d) to make any assignment for the benefit of the
Company's creditors, (e) to propose, or consent to, a scheme of arrangement
with creditors or shareholders; (f) to cause the Company to admit in
writing its inability to pay its debts generally as they become due, (g) to
dissolve, liquidate, consolidate, merge or sell all or substantially all of
the assets of the Company; (h) to engage in any business activity other
than the business purpose of the Company described in Bye-law 83, (i) to
amend the Company's Memorandum of Association or these Bye-laws, or (j) to
take any action, or cause the Company to take any action, in furtherance of
any of the foregoing.
92. Notice of a meeting of the Board shall be deemed to be duly given to a
Director if it is given to him personally or by word of mouth or sent to
him by post, cable, telex, telecopier or other mode of representing or
reproducing words in a legible and non-transitory form at his last known
address or any other address given by him to the Company for this purpose.
A Director may waive notice of any meeting either prospectively or
retrospectively.
93. (a) The quorum necessary for the transaction of the business of the Board
may be fixed by the Board and, unless so fixed at any other number,
shall be two individuals. Any Director who ceases to be a Director at
a meeting of the Board may continue to be present and to act as a
Director and be counted in the quorum until the termination of the
meeting if no other Director objects and if otherwise a quorum of
Directors would not be present.
(b) A Director who to his knowledge is in any way, whether directly or
indirectly, interested in a contract or proposed contract, transaction
or arrangement with the Company and has complied with the provisions
of the Companies Acts and these Bye-laws with regard to disclosure of
his interest shall be entitled to vote in respect of any contract,
transaction or arrangement in which he is so interested and if he
shall do so his vote shall be counted, and he shall be taken into
account in ascertaining whether a quorum is present.
94. So long as a quorum of Directors remains in office, the continuing
Directors may act notwithstanding any vacancy in the Board but, if no such
quorum remains, the continuing Directors or a sole continuing Director may
act only for the purpose of calling a general meeting.
95. The Chairman (if any) of the Board or, in his absence, the President shall
preside as chairman at every meeting of the Board. If there is no such
Chairman or President, or if at any meeting the Chairman or the President
is not present within five minutes after the time appointed for holding the
meeting, or is not willing to act as chairman, the Directors present may
choose one of their number to be chairman of the meeting.
96. The meetings and proceedings of any committee consisting of two or more
members shall be governed by the provisions contained in these Bye-laws for
regulating the meetings and proceedings of the Board so far as the same are
applicable and are not superseded by any regulations imposed by the Board.
97. A resolution in writing signed by all the Directors for the time being
entitled to receive notice of a meeting of the Board or by all the members
of a committee for the time being shall be as valid and effectual as a
resolution passed at a meeting of the Board or, as the case may be, of such
committee duly called and constituted. Such resolution may be contained in
one document or in several documents in the like form each signed by one or
more of the Directors (or their Alternate Directors) or members of the
committee concerned.
98. A meeting of the Board or a committee appointed by the Board may be held by
means of such telephone, electronic or other communication facilities as
permit all persons participating in the meeting to communicate with each
other simultaneously and instantaneously and participation in such a
meeting shall constitute presence in person at such meeting.
99. All acts done by the Board or by any committee or by any person acting as a
Director or member of a committee or any person duly authorised by the
Board or any committee, shall, notwithstanding that it is afterwards
discovered that there was some defect in the appointment of any member of
the Board or such committee or person acting as aforesaid or that they or
any of them were disqualified or had vacated their office, be as valid as
if every such person had been duly appointed and was qualified and had
continued to be a Director, member of such committee or person so
authorised.
OFFICERS
- --------
100. The officers of the Company shall include a President and a Vice-President
or a Chairman and a Deputy Chairman who shall be Directors and shall be
elected by the Board as soon as possible after the statutory meeting and
each Annual General Meeting. In addition, the Board may appoint any person
whether or not he is a Director to hold such office as the Board may from
time to time determine. Any person elected or appointed pursuant to this
Bye-law shall hold office for such period and upon such terms as the Board
may determine and the Board may revoke or terminate any such election or
appointment. Any such revocation or termination shall be without prejudice
to any claim for damages that such officer may have against the Company or
the Company may have against such officer for any breach of any contract of
service between him and the Company which may be involved in such
revocation or termination. Save as provided in the Companies Acts or these
Bye-laws, the powers and duties of the officers of the Company shall be
such (if any) as are determined from time to time by the Board.
MINUTES
- -------
101. The Directors shall cause minutes to be made and books kept for the purpose
of recording-
(a) all appointments of officers made by the Directors;
(b) the names of the Directors and other persons (if any) present at
each meeting of Directors and of any committee;
(c) of all proceedings at meetings of the Company, of the holders of
any class of shares in the Company, and of committees;
(d) of all proceedings of managers (if any).
SECRETARY AND RESIDENT REPRESENTATIVE
- -------------------------------------
102. The Secretary and Resident Representative, if necessary, shall be appointed
by the Board at such remuneration (if any) and upon such terms as it may
think fit and any Secretary so appointed may be removed by the Board.
The duties of the Secretary shall be those prescribed by the Companies Acts
together with such other duties as shall from time to time be prescribed by
the Board.
103. A provision of the Companies Acts or these Bye-laws requiring or
authorising a thing to be done by or to a Director and the Secretary shall
not be satisfied by its being done by or to the same person acting both as
Director and as, or in the place of, the Secretary.
THE SEAL
- --------
104. (a) The seal of the Company shall be in such form as the Board may
determine. The Board may adopt one or more duplicate seals for use
outside Bermuda.
(b) The seal of the Company shall not be affixed to any instrument except
attested by the signature of a Director and the Secretary or any two
Directors, or any person appointed by the Board for that purpose,
provided that any Director, Officer or Resident Representative, may
affix the seal of the Company attested by such Director, Officer or
Resident Representative's signature to any authenticated copies of
these Bye-Laws, the incorporating documents of the Company, the
minutes of any meetings or any other documents required to be
authenticated by such Director, Officer or Resident Representative.
DIVIDENDS AND OTHER PAYMENTS
- ----------------------------
105. The Board may from time to time declare cash dividends or distributions out
of contributed surplus to be paid to the Shareholders according to their
rights and interests including such interim dividends as appear to the
Board to be justified by the position of the Company. The Board may also
pay any fixed cash dividend which is payable on any shares of the Company
half yearly or on such other dates, whenever the position of the Company,
in the opinion of the Board, justifies such payment.
106. Except insofar as the rights attaching to, or the terms of issue of, any
share otherwise provide:-
(a) all dividends or distributions out of contributed surplus may be
declared and paid according to the amounts paid up on the shares
in respect of which the dividend or distribution is paid, and an
amount paid up on a share in advance of calls may be treated for
the purpose of this Bye-law as paid-up on the share;
(b) dividends or distributions out of contributed surplus may be
apportioned and paid pro rata according to the amounts paid-up on
the shares during any portion or portions of the period in
respect of which the dividend or distribution is paid.
107. The Board may deduct from any dividend, distribution or other moneys
payable to a Shareholder by the Company on or in respect of any shares all
sums of money (if any) presently payable by him to the Company on account
of calls or otherwise in respect of shares of the Company.
108. No dividend, distribution or other moneys payable by the Company on or in
respect of any share shall bear interest against the Company.
109. Any dividend, distribution, interest or other sum payable in cash to the
holder of shares may be paid by cheque or warrant sent through the post
addressed to the holder at his address in the Register or, in the case of
joint holders, addressed to the holder whose name stands first in the
Register in respect of the shares at his registered address as appearing in
the Register or addressed to such person at such address as the holder or
joint holders may in writing direct. Every such cheque or warrant shall,
unless the holder or joint holders otherwise direct, be made payable to the
order of the holder or, in the case of joint holders, to the order of the
holder whose name stands first in the Register in respect of such shares,
and shall be sent at his or their risk and payment of the cheque or warrant
by the bank on which it is drawn shall constitute a good discharge to the
Company. Any one of two or more joint holders may give effectual receipts
for any dividends, distributions or other moneys payable or property
distributable in respect of the shares held by such joint holders.
110. Any dividend or distribution out of contributed surplus unclaimed for a
period of six years from the date of declaration of such dividend or
distribution shall be forfeited and shall revert to the Company and the
payment by the Board of any unclaimed dividend, distribution, interest or
other sum payable on or in respect of the share into a separate account
shall not constitute the Company a trustee in respect thereof.
111. With the sanction of a Resolution the Board may direct payment or
satisfaction of any dividend or distribution out of contributed surplus
wholly or in part by the distribution of specific assets, and in particular
of paid-up shares or debentures of any other company, and where any
difficulty arises in regard to such distribution or dividend the Board may
settle it as it thinks expedient, and in particular, may authorise any
person to sell and transfer any fractions or may ignore fractions
altogether, and may fix the value for distribution or dividend purposes of
any such specific assets and may determine that cash payments shall be made
to any Shareholders upon the footing of the values so fixed in order to
secure equality of distribution and may vest any such specific assets in
trustees as may seem expedient to the Board.
RESERVES
- --------
112. The Board may, before recommending or declaring any dividend or
distribution out of contributed surplus, set aside such sums as it thinks
proper as reserves which shall, at the discretion of the Board, be
applicable for any purpose of the Company and pending such application may,
also at such discretion, either be employed in the business of the Company
or be invested in such investments as the Board may from time to time think
fit. The Board may also without placing the same to reserve carry forward
any sums which it may think it prudent not to distribute.
CAPITALISATION OF PROFITS
- -------------------------
113. The Company may, upon the recommendation of the Board, at any time and from
time to time pass a Resolution to the effect that it is desirable to
capitalise all or any part of any amount for the time being standing to the
credit of any reserve or fund which is available for distribution or to the
credit of any share premium account or any capital redemption reserve fund
and accordingly that such amount be set free for distribution amongst the
Shareholders or any class of Shareholders who would be entitled thereto if
distributed by way of dividend and in the same proportions, on the footing
that the same be not paid in cash but be applied either in or towards
paying up amounts for the time being unpaid on any shares in the Company
held by such Shareholders respectively or in payment up in full of unissued
shares, debentures or other obligations of the Company, to be allotted and
distributed credited as fully paid amongst such Shareholders, or partly in
one way and partly in the other, and the Board shall give effect to such
Resolution, provided that for the purpose of this Bye-law, a share premium
account and a capital redemption reserve fund may be applied only in paying
up of unissued shares to be issued to such Shareholders credited as fully
paid and provided further that any sum standing to the credit of a share
premium account may only be applied in crediting as fully paid shares of
the same class as that from which the relevant share premium was derived.
114. Where any difficulty arises in regard to any distribution under the last
preceding Bye-law, the Board may settle the same as it thinks expedient
and, in particular, may authorise any person to sell and transfer any
fractions or may resolve that the distribution should be as nearly as may
be practicable in the correct proportion but not exactly so or may ignore
fractions altogether, and may determine that cash payments should be made
to any Shareholders in order to adjust the rights of all parties, as may
seem expedient to the Board. The Board may appoint any person to sign on
behalf of the persons entitled to participate in the distribution any
contract necessary or desirable for giving effect thereto and such
appointment shall be effective and binding upon the Shareholders.
RECORD DATES
- ------------
115. Notwithstanding any other provisions of these Bye-laws, the Company may by
Resolution or the Board may fix any date as the record date for any
dividend, distribution, allotment or issue and for the purpose of
identifying the persons entitled to receive notices of general meetings.
Any such record date may be on or at any time before or after any date on
which such dividend, distribution, allotment or issue is declared, paid or
made or such notice is despatched.
ACCOUNTING RECORDS
- ------------------
116. The Board shall cause to be kept accounting records sufficient to give a
true and fair view of the state of the Company's affairs and to show and
explain its transactions, in accordance with the Companies Acts.
117. The records of account shall be kept at the Registered Office or at such
other place or places as the Board thinks fit, and shall at all times be
open to inspection by the Directors: PROVIDED that if the records of
account are kept at some place outside Bermuda, there shall be kept at an
office of the Company in Bermuda such records as will enable the Directors
to ascertain with reasonable accuracy the financial position of the Company
at the end of each three month period. No Shareholder (other than an
officer of the Company) shall have any right to inspect any accounting
record or book or document of the Company except as conferred by law or
authorised by the Board or by Resolution.
118. A copy of every balance sheet and statement of income and expenditure,
including every document required by law to be annexed thereto, which is to
be laid before the Company in general meeting, together with a copy of the
auditors' report, shall be sent to each person entitled thereto in
accordance with the requirements of the Companies Acts.
AUDIT
- -----
119. Save and to the extent that an audit is waived in the manner permitted by
the Companies Acts, auditors shall be appointed and their duties regulated
in accordance with the Companies Acts, any other applicable law and such
requirements not inconsistent with the Companies Acts as the Board may from
time to time determine.
SERVICE OF NOTICES AND OTHER DOCUMENTS
- --------------------------------------
120. Any notice or other document (including a share certificate) may be served
on or delivered to any Shareholder by the Company either personally or by
sending it through the post (by airmail where applicable) in a pre-paid
letter addressed to such Shareholder at his address as appearing in the
Register or by delivering it to or leaving it at such registered address.
In the case of joint holders of a share, service or delivery of any notice
or other document on or to one of the joint holders shall for all purposes
be deemed as sufficient service on or delivery to all the joint holders.
Any notice or other document if sent by post shall be deemed to have been
served or delivered seven days after it was put in the post, and in proving
such service or delivery, it shall be sufficient to prove that the notice
or document was properly addressed, stamped and put in the post.
121. Any notice of a general meeting of the Company shall be deemed to be duly
given to a Shareholder if it is sent to him by cable, telex, telecopier or
other mode of representing or reproducing words in a legible and
non-transitory form at his address as appearing in the Register or any
other address given by him to the Company for this purpose. Any such notice
shall be deemed to have been served twenty-four hours after its despatch.
122. Any notice or other document delivered, sent or given to a Shareholder in
any manner permitted by these Bye-laws shall, notwithstanding that such
Shareholder is then dead or bankrupt or that any other event has occurred,
and whether or not the Company has notice of the death or bankruptcy or
other event, be deemed to have been duly served or delivered in respect of
any share registered in the name of such Shareholder as sole or joint
holder unless his name shall, at the time of the service or delivery of the
notice or document, have been removed from the Register as the holder of
the share, and such service or delivery shall for all purposes be deemed as
sufficient service or delivery of such notice or document on all persons
interested (whether jointly with or as claiming through or under him) in
the share.
WINDING UP
- ----------
123. If the Company shall be wound up, the liquidator may, with the sanction of
a Resolution of the Company and any other sanction required by the
Companies Acts, divide amongst the Shareholders in specie or kind the whole
or any part of the assets of the Company (whether they shall consist of
property of the same kind or not) and may for such purposes set such values
as he deems fair upon any property to be divided as aforesaid and may
determine how such division shall be carried out as between the
Shareholders or different classes of Shareholders. The liquidator may, with
the like sanction, vest the whole or any part of such assets in trustees
upon such trust for the benefit of the contributories as the liquidator,
with the like sanction, shall think fit, but so that no Shareholder shall
be compelled to accept any shares or other assets upon which there is any
liability.
INDEMNITY
- ---------
124. Subject to the provisions of Bye-law 130, no Director, Alternate Director,
Officer, person or member of a committee authorised under Bye-law 90,
Resident Representative of the Company or his heirs, executors or
administrators shall be liable for the acts, receipts, neglects, or
defaults of any other such person or any person involved in the formation
of the Company, or for any loss or expense incurred by the Company through
the insufficiency or deficiency of title to any property acquired by the
Company, or for the insufficiency of deficiency of any security in or upon
which any of the monies of the Company shall be invested, or for any loss
or damage arising from the bankruptcy, insolvency, or tortious act of any
person with whom any monies, securities, or effects shall be deposited, or
for any loss occasioned by any error of judgment, omission, default, or
oversight on his part, or for any other loss, damage or misfortune whatever
which shall happen in relation to the execution of his duties, or supposed
duties, to the Company or otherwise in relation thereto.
125. Subject to the provisions of Bye-law 130, every Director, Alternate
Director, Officer, person or member of a committee authorised under Bye-law
90, Resident Representative of the Company and their respective heirs,
executors or administrators shall be indemnified and held harmless out of
the funds of the Company to the fullest extent permitted by Bermuda law
against all liabilities, loss, damage or expense (including but not limited
to liabilities under contract, tort and statute or any applicable foreign
law or regulation and all reasonable legal and other costs and expenses
properly payable) incurred or suffered by him as such Director, Alternate
Director, Officer, person or committee member or Resident Representative
and the indemnity contained in this Bye-law shall extend to any person
acting as such Director, Alternate Director, Officer, person or committee
member or Resident Representative in the reasonable belief that he has been
so appointed or elected notwithstanding any defect in such appointment or
election.
126. Every Director, Alternate Director, Officer, person or member of a
committee duly authorised under Bye-law 90, Resident Representative of the
Company and their respective heirs, executors or administrators shall be
indemnified out of the funds of the Company against all liabilities
incurred by him as such Director, Alternate Director, Officer, person or
committee member or Resident Representative in defending any proceedings,
whether civil or criminal, in which judgment is given in his favour, or in
which he is acquitted, or in connection with any application under the
Companies Acts in which relief from liability is granted to him by the
court.
127. To the extent that any Director, Alternate Director, Officer, person or
member of a committee duly authorised under Bye-law 90, Resident
Representative of the Company or any of their respective heirs, executors
or administrators is entitled to claim an indemnity pursuant to these
Bye-laws in respect of amounts paid or discharged by him, the relative
indemnity shall take effect as an obligation of the Company to reimburse
the person making such payment or effecting such discharge.
128. The Board may arrange for the Company to be insured in respect of all or
any part of its liability under the provision of these Bye-laws and may
also purchase and maintain insurance for the benefit of any Directors,
Alternate Directors, Officers, person or member of a committee authorised
under Bye-law 90, employees or Resident Representatives of the Company in
respect of any liability that may be incurred by them or any of them
howsoever arising in connection with their respective duties or supposed
duties to the Company. This Bye-law shall not be construed as limiting the
powers of the Board to effect such other insurance on behalf of the Company
as it may deem appropriate.
129. Each Member agrees to waive any claim or right of action he might have,
whether individually or by or in the right of the Company, against any
Director, Alternate Director, Officer of the Company, person or member of a
committee authorised under Bye-law 90, Resident Representative of the
Company or any of their respective heirs, executors or administrators on
account of any action taken by any such person, or the failure of any such
person to take any action in the performance of his duties, or supposed
duties, to the Company or otherwise in relation thereto.
130. The restrictions on liability, indemnities and waivers provided for in
Bye-laws 124 to 129 inclusive shall not extend to any matter which would
render the same void pursuant to the Companies Acts.
131. The restrictions on liability, indemnities and waivers contained in
Bye-laws 124 to 129 inclusive shall be in addition to any rights which any
person concerned may otherwise be entitled by contract or as a matter of
applicable Bermuda law.
ALTERATION OF BYE-LAWS
- ----------------------
132. The Company's Memorandum of Association and these Bye-laws may be amended
from time to time in the manner provided for in the Companies Acts, but
neither may be amended without consent of a majority of the votes cast by
shareholders of the Company in general meeting and the consent of a
majority of the Board (which consent must include the consent of the
majority of the Independent Directors).