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EXHIBIT 3.3
B Y E - L A W S
OF
TRENWICK GROUP LTD.
(formerly Gowin Holdings International Limited)
I HEREBY CERTIFY that the within written Bye-Laws are a true copy of the
Bye-Laws of
TRENWICK GROUP LTD.
approved by Written Resolution of the Shareholder adopted with effect as of 22nd
March 2000 in place of those originally adopted on the 14th day of December
1999.
/s/ JEANINE WELLMAN
Secretary
PREPARED BY
MESSRS APPLEBY SPURLING & KEMPE
CEDAR HOUSE
41 CEDAR AVENUE
HAMILTON, BERMUDA
[Seal of Bermuda
Registrar of Companies]
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TABLE OF CONTENTS
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1. Interpretation.............................................. 1
BOARD OF DIRECTORS.......................................... 3
2. Board of Directors.......................................... 3
3. Management of the Company................................... 3
Power to appoint managing director or chief executive
4. officer..................................................... 3
5. Power to authorize specific actions......................... 3
6. Power to appoint attorney................................... 3
7. Power to appoint and dismiss employees...................... 3
8. Power to delegate to a committee............................ 4
9. Power to borrow and charge property......................... 4
10. Election of Directors....................................... 4
11. Nominations proposed by Members............................. 5
12. Defects in appointment of Directors......................... 5
13. Removal of Directors........................................ 5
14. Vacancies on the Board...................................... 5
15. Notice of meetings of the Board............................. 6
16. Meetings of the Board....................................... 6
17. Unanimous written resolutions............................... 7
18. Contracts and disclosure of Directors' interests............ 7
19. Remuneration of Directors................................... 7
20. Other interests of Directors................................ 7
OFFICERS.................................................... 7
21. Officers of the Company..................................... 7
22. Duties of Officers.......................................... 8
23. Chairman of meetings........................................ 8
24. Register of Directors and Officers.......................... 8
MINUTES..................................................... 8
25. Obligations of Board to keep minutes........................ 8
INDEMNITY................................................... 8
Indemnification and exculpation of Directors and Officers of
26. the Company................................................. 8
MEETINGS.................................................... 10
27. Notice of annual general meeting............................ 10
28. Notice of special general meeting........................... 11
29. Accidental omission of notice of general meeting............ 11
30. Meeting called on requisition of Members.................... 11
31. Short notice................................................ 11
32. Postponement of meetings.................................... 11
33. Quorum for general meeting.................................. 11
34. Adjournment of meetings..................................... 11
35. Attendance at meetings...................................... 12
36. Written resolutions......................................... 12
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TABLE OF CONTENTS
(CONTINUED)
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37. Attendance of Directors..................................... 12
38. Voting at meetings.......................................... 12
39. Decision of chairman........................................ 12
40. Demand for a poll........................................... 12
41. Seniority of joint holders voting........................... 13
42. Instrument of proxy......................................... 13
43. Representation of corporations at meetings.................. 13
SHARE CAPITAL AND SHARES.................................... 13
44. Rights of shares............................................ 13
45. Power to issue shares....................................... 14
46. Repurchase of shares by Company or its assignee(s).......... 15
47. Variation of rights and alteration of share capital......... 17
48. Registered holder of shares................................. 17
49. Death of a joint holder..................................... 17
50. Share certificates.......................................... 17
REGISTER OF MEMBERS......................................... 18
51. Contents of Register of Members............................. 18
52. Inspection of Register of Members........................... 18
CLOSING REGISTER OF MEMBERS OR SETTING RECORD DATE.......... 18
53. Closing Register of Members................................. 18
54. Setting of record date...................................... 18
TRANSFER OF SHARES.......................................... 19
55. Instrument of transfer...................................... 19
56. Restrictions on transfer.................................... 19
TRANSMISSION OF SHARES...................................... 19
57. Representative of deceased Member........................... 19
58. Registration on death or bankruptcy......................... 20
59. Successors of Members....................................... 20
DIVIDENDS AND OTHER DISTRIBUTIONS........................... 20
60. Declaration of dividends by the Board....................... 20
61. Other distributions......................................... 20
62. Reserve fund................................................ 20
63. Deduction of amounts due to the Company..................... 21
64. Unclaimed dividends......................................... 21
65. Interest on dividend........................................ 21
CAPITALIZATION.............................................. 21
66. Capitalization.............................................. 21
ACCOUNTS AND FINANCIAL STATEMENTS........................... 21
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TABLE OF CONTENTS
(CONTINUED)
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67. Record of account........................................... 21
68. Financial year end.......................................... 21
69. Financial statements........................................ 21
AUDIT....................................................... 22
70. Appointment of Auditor...................................... 22
71. Remuneration of Auditor..................................... 22
72. Vacation of office of Auditor............................... 22
73. Access to books of the Company.............................. 22
74. Report of the Auditor....................................... 22
NOTICES..................................................... 22
75. Notices to Members of the Company........................... 22
76. Notices to joint Members.................................... 22
77. Service and delivery of notice.............................. 23
REGISTERED OFFICE........................................... 23
78. Registered office........................................... 23
SEAL OF THE COMPANY......................................... 23
79. The seal.................................................... 23
80. Manner in which seal is to be affixed....................... 23
WINDING-UP.................................................. 23
81. Determination to liquidate.................................. 23
82. Winding-up/distribution by liquidator....................... 23
ALTERATION OF MEMORANDUM OF ASSOCIATION
AND BYE-LAWS................................................ 23
83. Alteration of memorandum of association and byelaws......... 23
SCHEDULE - FORM A........................................... 24
SCHEDULE - FORM B........................................... 25
SCHEDULE - FORM C........................................... 26
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B Y E - L A W S
OF
TRENWICK GROUP LTD.
1. Interpretation
(1) In these Bye-laws the following words and expressions shall, where not
inconsistent with the context, have the following meanings respectively:
(a) "Act" means the Companies Act 1981 of Bermuda as amended from time to
time;
(b) "Auditor" includes any individual or partnership;
(c) "Board" means the Board of Directors appointed or elected pursuant to
these Bye-laws and acting by resolution in accordance with the Act and
these Bye-laws or the Directors present at a meeting of Directors at
which there is a quorum;
(d) "Code" means the United States Internal Revenue Code of 1986, as
amended, or any United States federal statute then in effect that has
replaced such statute, and a reference to a particular section thereof
shall be deemed to include a reference to the comparable section, if
any, of any such replacement United States federal statute;
(e) "Company" means the company for which these Bye-laws are approved and
confirmed;
(f) "Common Shares" as defined in Bye-Law 44;
(g) "Controlled Shares" in reference to any person means:
(i) all Common Shares directly, indirectly, or constructively owned by
such person within the meaning of section 958 of the Code (the
"Code Formula"); and
(ii) all Common Shares directly, indirectly or constructively owned as a
result of voting power held or shared by any person or "group" of
persons within the meaning of section 13(d)(3) of the Exchange Act
and the rules and regulations promulgated thereunder (the "13(d)
Formula").
For the purposes of the application of the 13(d) Formula, "person"
means any individual, firm, partnership, company, association or other
entity or any "group" of persons with respect to the exercise of voting
power within the meaning of section 13(d)(3) of Exchange Act and the
rules and regulations thereunder.
(h) "Director" means a director of the Company;
(i) "Exchange Act" means the United States Securities Exchange Act of
1934, as amended, or any United States federal statute then in effect
that has replaced such statute, and a reference to a particular
section thereof shall be deemed to include a reference to the
comparable section, if any, of any such replacement United States
federal statute;
(j) "Fair Market Value" means, with respect to a repurchase of any shares
of the Company in accordance with these Bye-laws, (i) if such shares
are listed on a securities exchange, the average closing sale price
of such shares on such exchange, or, if such shares are listed on
more than one exchange, the average closing sale price of the shares
on the principal securities exchange on which such shares are then
traded, or, if such shares are not then listed on a securities
exchange but are traded in the over-the-counter market, the average
of the latest bid and asked quotations for such shares in such
market, in each case for the last five trading days immediately
preceding the day on which notice of the repurchase of such shares is
sent pursuant to these Bye-laws or (ii) if no such closing sales
prices or quotations are available because such shares are not
publicly traded or otherwise, the fair value of such shares as
determined by one independent nationally recognized investment
banking firm chosen by the Company and reasonably satisfactory to the
Member whose shares are to be so repurchased by the Company. The
calculation of the Fair Market Value of the
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shares made by such appointed investment banking firm (i) shall not
include any discount relating to the absence of a public trading
market for, or any transfer restrictions on, such shares, and (ii)
such calculation shall be final and the fees and expenses stemming
from such calculation shall be borne by the Company or its assignee,
as the case may be;
(k) "Member" means the person registered in the Register of Members as the
holder of shares and, when two or more persons are so registered as
joint holders of shares, means the person whose name stands first in
the Register of Members as one of such joint holders or all of such
persons as the context so requires;
(l) "notice" means written notice as further defined in these Bye-laws
unless otherwise specifically stated;
(m) "Officer" means any person appointed by the Board to hold an office in
the Company;
(n) "person" means an individual, a trust, estate, partnership,
association, company, corporation or other legal entity;
(o) "Register of Directors and Officers" means the Register of Directors
and Officers referred to in Bye-law 25;
(p) "Register of Members" means the Register of Members referred to in
Bye-law 52;
(q) "Secretary" means the person appointed to perform any or all the
duties of secretary of the Company and includes any deputy or
assistant secretary;
(r) "Securities Act" means the United States Securities Act of 1933, as
amended, or any United States federal statute then in effect that has
replaced such statute, and a reference to a particular section thereof
shall be deemed to include a reference to the comparable section, if
any, of any such replacement United States federal statute;
(s) "United States" shall the United States of America and dependent
territories or any part thereof;
(t) "U.S. Person", except as otherwise indicated, means an individual who
is a citizen or resident of the United States, a corporation or
partnership created or organized under the laws of the United States
or any state thereof, or an estate or trust, all of the income of
which is includable in gross income for United States federal income
tax purposes, regardless of its source.
(2) In these Bye-laws, where not inconsistent with the context:
(a) words denoting the plural number include the singular number and vice
versa;
(b) words denoting the masculine gender include the feminine gender;
(c) the word:
(i) "may" shall be construed as permissive;
(ii) "shall" shall be construed as imperative; and
(iii) unless otherwise provided herein words or expressions defined in
the Act shall bear the same meaning in these Bye-laws.
(3) Expressions referring to writing or written shall, unless the contrary
intention appears, include facsimile, printing, lithography,
photography, electronic mail and other modes of representing words in a
visible form.
(4) Headings used in these Bye-laws are for convenience only and are not to
be used or relied upon in the construction hereof.
2
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BOARD OF DIRECTORS
2. Board of Directors
The business of the Company shall be managed and conducted by the Board.
3. Management of the Company
In managing the business of the Company, the Board may exercise all such
powers of the Company as are not, by statute or by these Bye-laws, required
to be exercised by the Company in general meeting subject, nevertheless, to
these Bye-laws, the provisions of any statute and to such regulations as
may be prescribed by the Company in general meeting.
No regulation or alteration to these Bye-laws made by the Company in
general meeting shall invalidate any prior act of the Board which would
have been valid if that regulation or alteration had not been made.
The Board may procure that the Company pays all expenses incurred in
promoting and incorporating the Company.
The Board may exercise all the powers of the Company to discontinue the
Company to a named country or jurisdiction outside Bermuda pursuant to
Section 132G of the Act.
4. Power to appoint managing director or chief executive officer
The Board may from time to time appoint one or more Directors to the office
of managing director or chief executive officer of the Company who shall,
subject to the control of the Board, supervise and administer all of the
general business and affairs of the Company.
5. Power to authorize specific actions
The Board may from time to time and at any time authorize any Director,
Officer or other person to act on behalf of the Company for any specific
purpose and in connection therewith to execute any agreement, document or
instrument on behalf of the Company.
6. Power to appoint attorney
The Board may from time to time and at any time by power of attorney
appoint any company, firm, person or body of persons, whether nominated
directly or indirectly by the Board, to be an attorney of the Company for
such purposes and with such powers, authorities and discretions (not
exceeding those vested in or exercisable by the Board) 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 authorize any such attorney to sub-delegate all or any of the powers,
authorities and discretions so vested in the attorney. Such attorney may,
if so authorized under the seal of the Company, execute any deed or
instrument under such attorney's personal seal with the same effect as the
affixation of the seal of the Company.
7. Power to appoint and dismiss employees
The Board may appoint, suspend or remove any manager, secretary, clerk,
agent or employee of the Company and may fix their remuneration and
determine their duties.
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8. Power to delegate to a committee
The Board may appoint one or more Board committees and may delegate any of
its powers to any such committee. Without limiting the foregoing, such
committees may include:
(a) an Executive Committee which shall have the power of the Board between
meetings of the Board;
(b) an Underwriting and Actuarial Committee, which shall, among other
things, advise the Board with respect to underwriting policies for the
Company, review underwriting decisions made by the Company, monitor any
appointed underwriting services provider, advise the Board with respect
to actuarial and pricing services, review actuarial decisions and
monitor any provider of actuarial services;
(c) an Investment Committee, which shall, among other things, review and
monitor the Company's financial affairs and the conformity of the
Company's financial and investment activities with the business
strategy for the Company established by the Board;
(d) an Audit Committee, which shall, among other things, advise the Board
with respect to the Company's financial reporting responsibilities and
related matters;
(e) a Nominating Committee, which shall, among other things, propose to the
Members or to continuing Directors, before any election of Directors by
Members or the filling of any vacancy by the Board, a slate of director
candidates equal in number to the vacancies to be filled. The
Nominating Committee shall have neither more nor less than three
members; and
(f) a Compensation Committee, which shall, among other things, advise the
Board with respect to compensation of Officers.
All Board committees shall conform to such directions as the Board
shall impose on them, provided that each member shall have one (1)
vote, and each committee shall have the right as it deems appropriate
to retain outside experts. Each committee may adopt rules for the
conduct of its affairs, including rules governing the adoption of
resolutions by unanimous written consent, and the place, time, and
notice of meetings, as shall be advisable and as shall not be
inconsistent with these Bye-laws or with any applicable resolution
adopted by the Board. Each committee shall cause minutes to be made of
all meetings of such committee and of the attendance thereat and shall
cause such minutes and copies of resolutions adopted by unanimous
consent to be promptly inscribed or incorporated by the Secretary in
the minute book.
9. Power to borrow and charge property
The Board may exercise all the powers of the Company to borrow money, to
assume, guarantee or otherwise become directly or indirectly liable for
indebtedness for borrowed money, and to mortgage or charge its undertaking,
property and uncalled capital, or any part thereof, and may issue
debentures, debenture stock and other securities whether outright or as
security for any debt, liability or obligation of the Company or any third
party.
10. Election of Directors
The number of Directors constituting the Board shall be not less than two
(2) nor more than twenty (20), the exact number to be determined from time
to time by resolution adopted by the affirmative vote of more than fifty
percent (50%) of the Directors then in office; provided, however, that if
no such resolution shall be in effect the number of Directors shall be
twenty (20). The Board shall be divided into three classes, with the term
of the office of one class expiring each year. Each class shall consist, as
nearly as possible, of one-third of the total number of Directors
constituting the entire Board. Upon the adoption of this Bye-law, Class I
Directors shall be those Directors elected to hold office for a term
expiring at the next annual general meeting; Class II Directors shall be
those Directors elected to hold office for a term expiring at the next
annual general meeting in the year after the Class I Directors' terms
expire; and Class III Directors shall be those Directors elected to hold
office for a term expiring at
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the next annual general meeting in the year after the Class II Directors'
terms expire. At each annual general meeting of Members, successors to
Directors whose terms expire at that annual general meeting shall be of the
same class as the Directors they succeed and shall be elected to hold
office for a full three (3) year term. If the number of Directors is
altered by resolution of the Board pursuant to this Bye-law, such
resolution shall apportion any increase or decrease among the classes so as
to maintain the number of Directors in each class as equal as possible, but
in no case shall a decrease in the number of Directors shorten the term of
any incumbent Director.
Notwithstanding any other provision of this Bye-law [10], no person shall
be elected as a Director, other than persons nominated by the Board or a
committee thereof, unless advance notice of the nomination of such person
shall have been given to the Company in the manner provided in Bye-law 11.
11. Nominations proposed by Members
If a Member desires to nominate one or more persons for election as
Directors at any general meeting duly called for the election of Directors,
written notice of such Member's intent to make such a nomination must be
received by the Secretary at the registered office of the Company not less
than 60 days nor more than 120 days before such general meeting. Such
notice shall set forth (i) the name and address, as it appears in the
Register of Members, of the Member who intends to make such nomination;
(ii) a representation that the Member is a holder of record of shares of
the Company entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to make such nomination; (iii) the class
and number of shares of the Company which are held by the Member; (iv) the
name and address of each person to be nominated; (v) a description of all
arrangements or understandings between the Member and any such nominee and
any other person or persons (naming such person or persons) pursuant to
which such nomination is to be made by the Member; (vi) such other
information regarding any such nominee proposed by such Member as would be
required to be included in a proxy statement filed pursuant to Regulation
14A under the Exchange Act, whether or not the Company is then subject to
such Regulation; and (vii) the consent of any such nominee to serve as a
Director, if so elected. The Chairman of such general meeting shall, if the
facts warrant, refuse to acknowledge a nomination that is not made in
compliance with the procedure specified in this Bye-law 11, and any such
nomination not properly brought before the meeting shall not be considered.
12. Defects in appointment of Directors
All acts done bona fide by any meeting of the Board or by a committee of
the Board or by any person acting as a Director shall, notwithstanding that
it be afterwards discovered that there was some defect in the appointment
of any Director or person acting as aforesaid, or that they or any of them
were disqualified, be as valid as if every such person had been duly
appointed and was qualified to be a Director.
13. Removal of Directors
Subject to any provisions to the contrary in these Bye-laws, the Members,
at an annual general meeting or a special general meeting called for that
purpose, may remove any Director or the entire Board, provided that (i) the
notice of any such meeting shall contain a statement of the intention so to
do and be served on such Director not less than fourteen (14) days before
the meeting and (ii) at such meeting such Director shall be entitled to be
heard on the motion for such Director's removal.
14. Vacancies on the Board
The Board shall have the power from time to time and at any time, by the
affirmative vote of more than fifty percent (50%) of the Directors then in
office, to appoint any person as a Director to fill a vacancy on the Board
occurring as the result of the death, disability, disqualification or
resignation of any Director or, to the extent authorized by these Bye-laws,
to fill a vacancy on the Board occurring as a result of the removal of a
Director by the Members pursuant to these Bye-laws. A Director so appointed
shall hold
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office until the next annual general meeting or until such Director's
successor is elected or appointed or such Director's office is otherwise
vacated.
The Board may act notwithstanding any vacancy in its number but, if and for
so long as its number is reduced below the number fixed by these Bye-laws
as the quorum necessary for the transaction of business at meetings of the
Board, the continuing Directors or Director may act only for the purpose of
(i) summoning a general meeting of the Company or (ii) preserving the
assets of the Company.
The office of Director shall be vacated if the Director:
(a) is removed from office pursuant to these Bye-laws or is prohibited from
being a Director by law;
(b) is or becomes bankrupt or makes any arrangement or composition with his
creditors generally;
(c) is or becomes of unsound mind or dies; or
(d) resigns his or her office by notice in writing to the Company.
15. Notice of meetings of the Board
The Chairman or Deputy Chairman, or any two (2) Directors may, and the
Secretary on the requisition of the Chairman, Deputy Chairman, or any two
(2) Directors shall, at any time summon a meeting of the Board by not less
than five (5) days' notice in writing to each Director.
Notice of a meeting of the Board shall specify the general nature of the
business to be considered at such meeting and shall be deemed to be duly
given to a Director if it is given to such Director in person or otherwise
communicated or sent to such Director by mail, courier service, cable,
telex, telecopier, facsimile or other mode of representing words in a
legible and non-transitory form at such Director's address in the Register
of Directors and Officers or to such other address given by such Director
to the Company for this purpose, in each case, not less than five (5) days'
prior to the meeting to which such notice relates. If such notice is sent
by next-day courier, cable, telex, telecopier or facsimile it shall be
deemed to have been given the day following sending and, if by registered
mail, five days following the sending.
A Board meeting shall, notwithstanding that it is called by shorter notice
than that specified in this Bye-law, be deemed to have been properly called
if it is so agreed in writing by all the Directors, whether present or not
at the meeting.
Meetings of the Directors may be held within or outside of Bermuda.
16. Meetings of the Board
(a) The Board shall hold regular quarterly meetings although it may
specially meet for the transaction of business, adjourn and otherwise
regulate its meetings as it sees fit. The quorum necessary for the
transaction of business may be fixed by the affirmative vote of more
than fifty percent (50%) of the Directors then in office and unless so
fixed shall be the lesser of six (6) or fifty percent (50%) of the
Directors then in office.
(b) Directors may participate in any meeting of the Board 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.
(c) The Directors shall elect one of their number to be Chairman of the
Board and another to be Deputy Chairman of the Board.
(d) A resolution put to the vote at a meeting of the Board shall be carried
by the affirmative vote of more than fifty percent (50%) of the votes
of the Directors present at a duly constituted meeting at which a
quorum is present and acting throughout unless otherwise provided by
these Bye-laws or by Bermuda law.
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17. Unanimous written resolutions
A resolution in writing signed by all the Directors, which may be in
counterparts, shall be as valid as if it had been passed at a meeting of
the Board duly called and constituted. Such resolution shall be deemed to
be adopted at the place where, and at the time when, the last signature of
a Director is affixed thereto.
18. Contracts and disclosure of Directors' interests
Any Director, or any Director's firm, partner or any company with whom any
Director is associated, may act in a professional capacity for the Company
and such Director or such Director's firm, partner or such company shall be
entitled to remuneration for professional services as if such Director were
not a Director, provided that nothing herein contained shall authorize a
Director or Director's firm, partner or such company to act as Auditor of
the Company.
A Director who is directly or indirectly interested in a contract or
proposed contract or arrangement with the Company shall declare the nature
of such interest as required by the Act.
Following a declaration being made pursuant to this Bye-law, and unless
disqualified by the chairman of the relevant Board meeting, a Director may
vote in respect of any contract or arrangement or proposed contract or
arrangement in which such Director is interested and may be counted in the
quorum at such meeting.
19. Remuneration of Directors
The remuneration (if any) of the Directors shall be determined by the Board
and shall be deemed to accrue from day to day. The Directors shall be
reimbursed for all travel, hotel and other expenses which are reasonable
and properly incurred by them in attending and returning from meetings of
the Board, any committee appointed by the Board, general meetings of the
Company, or in connection with the business of the Company or their duties
as Directors generally.
A Director may hold any other office or place of profit under the Company
(other than the office of Auditor) in conjunction with his office of
Director for such period on such terms as to remuneration and otherwise as
the Directors may determine.
20. Other interests of Directors
A Director of the Company may be or become a director or other officer of
or otherwise interested in any company promoted by the Company or in which
the Company may be interested as member or otherwise, and no such Director
shall be accountable to the Company for any remuneration or other benefits
received by him as a director or officer of, or from his interest in, such
other company. The Directors 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 the Board 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.
OFFICERS
21. Officers of the Company
The Officers, who shall be appointed by the Board, shall consist of a
Chairman, President, one or more Deputy Chairmen, one or more Vice
Presidents, a Treasurer, a Secretary and such other Officers as the Board
may from time to time determine to be necessary or advisable in the conduct
of the affairs of the Company. The same person may hold two (2) or more
offices in the Company, except no person may hold the offices of President
and Secretary, Chairman and Deputy Chairman or President and Vice-
President at the same time. The Deputy Chairman shall not by virtue of such
office have any executive
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authority on behalf of the Company. The Officers shall receive such
remuneration as the Board may from time to time determine.
22. Duties of Officers
The Officers shall have such powers and perform such duties in the
management, business and affairs of the Company as may be delegated to them
by the Board from time to time.
23. Chairman of meetings
Unless otherwise agreed by a majority of those attending and entitled to
attend and vote thereat, the Chairman shall act as chairman at all meetings
of the Members and of the Board at which such person is present. In his
absence a Deputy Chairman, if present, shall act as chairman and in the
absence of all of them a chairman shall be appointed or elected by those
present at the meeting and entitled to vote.
24. Register of Directors and Officers
The Board shall cause to be kept in one or more books at the registered
office of the Company a Register of Directors and Officers and shall enter
therein the particulars required by the Act.
The Register of Directors and Officers shall be open to inspection by
Members and other entitled persons at the office of the Company on every
business day, subject to such reasonable restrictions as the Board may
impose, so that not less than two (2) hours in each business day is allowed
for inspection.
MINUTES
25. Obligations of Board to keep minutes
The Board shall cause minutes to be duly entered in books provided for the
purpose:
(a) of all elections and appointments of Officers;
(b) of the names of the Directors present at each meeting of the Board and
of any committee appointed by the Board; and
(c) of all resolutions and proceedings of general meetings of the Members,
meetings of the Board, meetings of managers and meetings of committees
appointed by the Board.
INDEMNITY
26. Indemnification and exculpation of Directors and Officers of the Company
(a) The Company shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including all appeals (other than an action, suit or
proceeding by or in the right of the Company) by reason of the fact
that he is or was a Director, Officer or advisory committee member, or
is or was serving at the request of the Company as a director or
officer of another company, corporation, partnership, joint venture,
trust or other enterprise, against expenses (including, without
limitation, reasonable professional fees, expert witness fees and
attorneys' fees), judgments, decrees, fines, penalties and amounts paid
in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action,
suit or proceeding, had no reasonable cause to believe his conduct was
unlawful except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been finally
adjudged to be liable for fraud or dishonesty in the performance of his
duty to the Company. The termination of any action, suit or proceeding
by
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judgment, order, settlement, -conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action,
suit or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) The Company shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, including all appeals, by or in the right
of the Company to procure a judgment in its favour by reason of the
fact that he is or was a Director, Officer or advisory committee
member, or is or was serving at the request of the Company as a
director or officer of another company, corporation, partnership, joint
venture, trust or other enterprise, against expenses (including,
without limitation, reasonable professional fees, expert witness fees
and attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company
and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been finally
adjudged to be liable for fraud or dishonesty in the performance of his
duty to the Company unless and only to the extent that the court in
which such action, suit or proceeding was brought, or any other court
of competent jurisdiction, shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem
proper.
(c) The Company shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, including all appeals, by or in the right
of the Company to procure a judgment in its favour by reason of the
fact that he is or was a Director, Officer or advisory committee
member, or is or was serving at the request of the Company as a
director or officer of another company, corporation, partnership, joint
venture, trust or other enterprise, against judgments, decrees, fines,
penalties and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company, but only to the
extent that a court determines upon application that, in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity.
(d) The purpose of this Bye-law as a whole is to provide the broadest
indemnity allowable at law, and to the extent any indemnification
hereunder is prohibited, unenforceable or not authorized under
applicable law, it is the intent of this Bye-law that such
indemnification be interpreted as broadly as possible without
invalidating the remaining provisions hereof. Specifically, to the
extent prohibited by Bermuda law, these Bye-laws shall not result in
indemnification of any person to the extent he engaged in fraud or
dishonesty.
(e) If any person has been successful on the merits or otherwise in defense
of any action, suit or proceeding for which he is entitled to
indemnification pursuant to Bye-law 26(a), or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(f) Any indemnification under Bye-law 26(a), unless ordered by a court,
shall be made by the Company only as authorized in the specific case
upon a determination that indemnification of such person is proper in
the circumstances because he has met the applicable standard of conduct
set forth in Bye-law 26(a). Such determination shall be made (1) by the
Board by a majority vote of Directors who were not parties to such
action, suit or proceeding, or (2) if a majority of the disinterested
Directors so directs, by independent legal counsel in a written
opinion, or (3) by the Members. If any person is entitled to
indemnification under Bye-law 26(a) for a portion of the expenses
(including attorneys' fees), judgments, decrees, fines, penalties and
amounts paid in settlement actually and reasonably incurred by him in
connection with an action, suit or proceeding, the Company shall
indemnify such person only as to the portion to which he is entitled.
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<PAGE> 14
(g) Expenses (including attorneys' fees) actually and reasonably incurred
by any person in defending any civil, criminal, administrative or
investigative action, suit or proceeding or threat thereof referred to
in Bye-law 26(a) shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such person to repay such amount if it
shall be ultimately determined that he is not entitled to be
indemnified by the Company as authorized in these Bye-Laws or otherwise
pursuant to applicable law; provided, however, that if it is determined
by either (1) a majority vote of Directors who were not parties to such
action, suit or proceeding, or (2) if a majority of the disinterested
directors so directs, by independent legal counsel in a written
opinion, that there is no reasonable basis to believe that such person
is entitled to be indemnified by the Company as authorized in these
Bye-Laws or otherwise pursuant to applicable law, then no expense shall
be advanced in accordance with this Bye-law 26(d).
(h) The indemnification and advancement of expenses provided in these
Bye-Laws shall not be deemed exclusive of any other rights to which
those seeking indemnification and advancement of expenses may now or
hereafter be entitled under any statute, agreement, vote of Members or
otherwise, both as to action in an official capacity and as to action
in another capacity while holding such office.
(i) The Company shall have power to purchase and maintain insurance on
behalf of any person who is or was a Director, Officer or advisory
committee member, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee
or agent of another company, corporation, partnership, joint venture,
trust or other enterprise, against any liability asserted against him
and incurred by him in any capacity, or arising out of his status as
such, whether or not the Company would have the power to indemnify him
against such liability under the provisions of these Bye-Laws or under
law.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Bye-law shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to hold
the position for which he is entitled to be indemnified or advanced
expenses and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) In order to induce persons to serve as Directors, Officers or advisory
committee members, or at the request of the Company as directors or
officers of another company, corporation, partnership, joint venture,
trust or other enterprise, each Member waives any claim or right of
action it might have, whether individually or by or in the right of the
Company, against any such person on account of any action taken by such
person, or the failure of such person to take any action, in the
performance of his duties with or for the Company or such other
company, corporation, partnership, joint venture, trust or other
enterprise; provided, however, that such waiver shall not apply to any
claims or rights of action arising out of the fraud or dishonesty of
such person or to recover any gain, personal profit or advantage to
which such person is not legally entitled.
MEETINGS
27. Notice of annual general meeting
The annual general meeting of the Company shall be held at such time and
place as the Chairman or any two (2) Directors or any Director and the
Secretary or the Board shall appoint. No annual general meeting shall take
place in the United States. Written notice of such meeting stating the
date, place and time at which the meeting is to be held, that the election
of Directors will take place thereat, and as far as practicable, the other
business to be conducted at the meeting shall be given to each Member not
less than five (5) days before the date of such meeting.
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28. Notice of special general meeting
The Chairman or any two (2) Directors or any Director and the Secretary or
the Board may convene a special general meeting of the Company whenever in
their judgment such a meeting is necessary. No special general meeting
shall take place in the United States. Written notice of such meeting
stating the date, place and the time at which the meeting is to be held and
the general nature of the business to be considered at the meeting shall be
given to each Member not less than five (5) days before the date of such
meeting.
29. Accidental omission of notice of general meeting
The accidental omission to give notice of a general meeting to, or the
non-receipt of notice of a general meeting by, any person entitled to
receive notice shall not invalidate the proceedings at that meeting.
30. Meeting called on requisition of Members
Notwithstanding anything herein, the Board shall, on the requisition of
Members holding at the date of the deposit of the requisition not less than
one-tenth of such of the paid-up share capital of the Company as at the
date of the deposit carries the right to vote at general meetings of the
Company, forthwith proceed to convene a special general meeting of the
Company and the provisions of section 74 of the Act shall apply.
31. Short notice
A general meeting of the Company shall, notwithstanding that it is called
by shorter notice than that specified in these Bye-laws, be deemed to have
been properly called if it is so agreed by (i) all the Members entitled to
attend and vote thereat in the case of an annual general meeting; and (ii)
a majority in number of the Members having the right to attend and vote at
the meeting, being a majority together holding not less than ninety-five
percent (95%) of the total issued and outstanding Common Shares.
32. Postponement of meetings
The Board may postpone any general meeting called in accordance with the
provisions of these Bye-laws (other than a meeting requisitioned under
these Bye-laws) provided that notice of postponement is given to each
Member before the time for such meeting. Fresh notice of the date, time and
place for the postponed meeting shall be given to each Member in accordance
with the provisions of these Bye-laws.
33. Quorum for general meeting
At any general meeting of the Company, two (2) or more persons present in
person and representing in person or by proxy in excess of fifty percent
(50%) of the total issued and outstanding Common Shares throughout the
meeting shall form a quorum for the transaction of business, provided that
if the Company shall at any time have only one (1) Member, one Member
present in person or by proxy shall form a quorum for the transaction of
business at any general meeting of the Company held during such time. If
within half an hour from the time appointed for the meeting a quorum is not
present, the meeting shall stand adjourned to the same day one (1) week
later, at the same time and place or to such other day, time or place as
the Board may determine.
34. Adjournment of meetings
The chairman of a general meeting may, with the consent of the Members at
any general meeting at which a quorum is present (and shall if so
directed), adjourn the meeting. Unless the meeting is adjourned to a
specific date and time, fresh notice of the date, time and place for the
resumption of the adjourned meeting shall be given to each Member in
accordance with the provisions of these Bye-laws.
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35. Attendance at meetings
Members may participate in any general meeting 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.
36. Written resolutions
(a) A resolution in writing signed by all Members, which may be in
counterparts, shall be as valid as if it had been passed by a General
Meeting duly called and constituted, such resolution to be effective on
the date on which the last Member signs the resolution.
(b) A resolution in writing made in accordance with this Bye-law shall
constitute minutes for the purposes of sections 81 and 82 of the Act.
(c) This Bye-law shall not apply to (i) a resolution passed pursuant to
section 89(5) of the Act or (ii) a resolution passed for the purpose of
removing a Director before the expiration of his term of office under
these Bye-laws or Section 93 of the Act.
37. Attendance of Directors
The Directors of the Company shall be entitled to receive notice of and to
attend and be heard at any general meeting.
38. Voting at meetings
Subject to the provisions of the Act and these Bye-laws, any question
proposed for the consideration of the Members at any general meeting shall
be decided by the affirmative vote of more than fifty percent (50%) of the
votes cast in accordance with the provisions of these Bye-laws.
39. Decision of chairman
At any general meeting a declaration by the chairman of the meeting that a
question proposed for consideration has been carried, or carried
unanimously, or by a particular majority, or lost, and an entry to that
effect in a book containing the minutes of the proceedings of the Company
shall, subject to the provisions of these Bye-laws, be conclusive evidence
of that fact.
40. Demand for a poll
(a) Notwithstanding the provisions of the immediately preceding Bye-law, at
any general meeting of the Company, in respect of any question proposed
for the consideration of the Members, a poll may be demanded by any of
the following persons:
(1) the chairman of such meeting;
(2) at least three (3) Members present in person or represented by
proxy;
(3) any Member or Members present in person or represented by proxy
and holding between them not less than one-tenth of the total
voting power of all the Members having the right to vote at such
meeting; or
(4) any Member or Members present in person or represented by proxy
holding Common Shares for which an aggregate sum has been paid up
equal to not less than one-tenth of the total sum paid up on all
Common Shares.
(b) Where, in accordance with the provisions of subparagraph (a) of this
Bye-law, a poll is demanded, subject to any rights or restrictions for
the time being lawfully attached to any class of shares and subject to
the provisions of these Bye-laws, every Member present in person or by
proxy at such
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meeting shall have one (1) vote for each Common Share of which such
person is the holder or for which such person holds a proxy and such
votes shall be counted in the manner set out in subparagraph (d) of
this Bye-law or in the case of a general meeting at which one (1) or
more Members are present by telephone in such manner as the chairman of
the meeting may direct and the result of such poll shall be deemed to
be the resolution of the meeting at which the poll was demanded and
shall replace any previous resolution upon the same matter.
(c) A poll demanded in accordance with the provisions of subparagraph (a)
of this Bye-law, for the purpose of electing a chairman or on a
question of adjournment, shall be taken forthwith, and a poll demanded
on any other question shall be taken in such manner and at such time at
such meeting as the chairman may direct, and any business other than
that upon which a poll has been demanded may be proceeded with pending
the taking of the poll.
(d) Where a vote is taken by poll, each Member present in person or by
proxy and entitled to vote shall be furnished with a ballot on which
such person shall record his or her vote in such manner as shall be
determined at the meeting having regard to the nature of the question
on which the vote is taken, and each ballot paper shall be signed or
initialled or otherwise marked so as to identify the voter and the
registered holder in the case of a proxy. At the conclusion of the
poll, the ballot papers shall be examined and counted by a committee of
not less than two (2) Members or proxy holders appointed by the
chairman for the purpose and the result of the poll shall be declared
by the chairman.
41. Seniority of joint holders voting
In the case of joint holders the vote of the senior who tenders a vote,
whether in person or by proxy, shall be accepted to the exclusion of the
votes of the other joint holders, and for this purpose seniority shall be
determined by the order in which the names stand in the Register of
Members.
42. Instrument of proxy
The instrument appointing a proxy shall be in writing in the form, or as
near thereto as circumstances admit, of Form "A" in the Schedule hereto,
under the hand of the appointor or of the appointor's attorney duly
authorized in writing, or if the appointor is a corporation, either under
its seal or under the hand of a duly authorized officer or attorney. The
decision of the chairman of any general meeting as to the validity of any
instrument of proxy shall be final.
43. Representation of corporations at meetings
A corporation which is a Member may, by written instrument, authorize such
person as it thinks fit to act as its representative at any meeting of the
Members and the person so authorized shall be entitled to exercise the same
powers on behalf of the corporation which such person represents as that
corporation could exercise if it were an individual Member. Notwithstanding
the foregoing, the chairman of the meeting may accept such assurances as he
or she thinks fit as to the right of any person to attend and vote at
general meetings on behalf of a corporation which is a Member.
SHARE CAPITAL AND SHARES
44. Rights of shares
(a) The share capital of the Company shall be US$15,000,000 divided into
two (2) classes of shares consisting of 150,000,000 shares of par
value U.S.$0.10 divided into (i) common shares (the "Common Shares")
and (ii) preferred shares (the "Preferred Shares").
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(b) Subject to the provisions of these Bye-laws, the holders of Common
Shares shall:
(1) be entitled to one (1) vote per Common Share;
(2) be entitled to such dividends as the Board may from time to time
declare;
(3) in the event of a winding-up or dissolution of the Company,
whether voluntary or involuntary or for the purpose of a
reorganisation or otherwise or upon any distribution of capital,
be entitled to the surplus assets of the Company; and
(4) generally be entitled to enjoy all of the rights attaching to
shares.
(c) The Board is authorized, subject to limitations prescribed by law, to
issue the Preferred Shares in series, to establish from time to time
the number of Preferred Shares to be included in each such series, and
to fix the designation, powers, preferences and rights of the
Preferred Shares of each such series and the qualifications,
limitations or restrictions thereof. The terms of any series of
Preferred Shares shall be set forth in a Certificate of Designation in
the minutes of the Company.
The authority of the Board with respect to each series shall include,
but not be limited to, determination of the following:
(1) The number of Preferred Shares constituting that series and the
distinctive designation of that series;
(2) The rate of dividend, and whether (and if so, on what terms and
conditions) dividends shall be cumulative (and, if so, whether
unpaid dividends shall compound or accrue interest) or shall be
payable in preference or in any other relation to the dividends
payable on any other class or classes of shares or any other
series of the Preferred Shares;
(3) Whether that series shall have voting rights in addition to the
voting rights provided by law and, if so, the terms and extent
of such voting rights;
(4) Whether the Preferred Shares may be redeemed and, if so, the
terms and conditions on which they may be redeemed (including,
without limitation, the dates upon or after which they may be
redeemed and the price or prices at which they may be redeemed,
which price or prices may be different in different
circumstances or at different redemption dates);
(5) Whether the Preferred Shares shall be issued with the privilege
of conversion or exchange and, if so, the terms and conditions
of such conversion or exchange (including without limitation the
price or prices or the rate or rates of conversion or exchange
or any terms for adjustment thereof);
(6) The amounts, if any, payable upon the Preferred Shares in the
event of voluntary liquidation, dissolution or winding up of the
Company in preference of shares of any other class or series and
whether the Preferred Shares shall be entitled to participate
generally in distributions on the Common Shares under such
circumstances;
(7) The amounts, if any, payable upon the Preferred Shares in the
event of involuntary liquidation, dissolution or winding up of
the Company in preference of shares of any other class or series
and whether the Preferred Shares shall be entitled to
participate generally in distributions on the Common Shares
under such circumstances;
(8) Sinking fund provisions, if any, for the redemption or purchase
of the Preferred Shares (the term "sinking fund" being
understood to include any similar fund, however designated); and
(9) Any other relative rights, preferences, limitations and powers
of that series.
45. Power to issue shares
(a) Subject to the provisions of these Bye-laws, the unissued shares of
the Company (whether forming part of the original share capital or any
increased share capital) shall be at the disposal of the
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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
or rights in respect thereof), at such times, for such consideration
and on such terms and conditions as it 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 as may be determined by the Board).
(b) The Board shall, in connection with the issue of any share, have the
power to pay such commissions and brokerage fees and charges as may be
permitted by law.
(c) The Company shall not give, whether directly or indirectly, whether by
means of loan, guarantee, provision of security or otherwise, any
financial assistance for the purpose of a purchase or subscription
made or to be made by any person of or for any shares, but nothing in
this Bye-law shall prohibit transactions mentioned in Sections 39A,
39B and 39C of the Act.
46. Repurchase of shares by Company or its assignee(s)
(a) Exercise of power to repurchase shares of the Company
The Board may exercise all the powers of the Company to purchase all or
any part of its own shares pursuant to Sections 42 and 42A of the Act.
(b) Over-the-Threshold Common Shareholders
Every Member of record present in person or by proxy shall have one
vote for each Common Share registered in such Member's name in the
Register, PROVIDED that, if and so long as the Controlled Shares of
any person would, upon giving effect to the principle that holders of
Common Shares shall have one vote for each Common Share so registered,
confer upon any such person ten percent (10%) or more of the votes
that may be cast by all holders of Common Shares of the Company (any
such person being referred to as an "Over-the-Threshold Common
Shareholder"), each issued share comprised in such Controlled Shares
shall confer only a fraction of a vote according to the following
formula (the "Cut-back Formula"):
[(D divided by 10)-1] divided by B
Where:
1. "A" is equal to the number of outstanding Common Shares.
2. "B" is equal to the number of Controlled Shares of such person.
3. "C" is equal to [(A divided by 10)-1] divided by A.
4. "D" is equal to (A minus B) divided by (1.00 minus C).
If there is more than one person who is an "Over-the-Threshold Common
Shareholder", the Cut-back Formula shall be applied to each such
person, taking into consideration any reduction in the voting rights
of any other person or persons under the Cut-back Formula. If the
application of the Cut-back Formula results in any person becoming an
"Over-the-Threshold Common Shareholder, then the Cut-back Formula
shall be applied again, and repeated, until no "Over-the-Threshold
Common Shareholder" remains with Controlled Shares with ten percent
(10%) or more of the votes that may be cast by all holders of Common
Shares of the Company after application of the Cut-back Formula. The
Board shall have the power and authority to make all determinations
that may be required to effectuate the provisions of this Bye-law
46(b), including any required determination of the number of Common
Shares that may be deemed to be held by any person, and such
determinations shall be conclusive. All record and beneficial owners
of Common Shares shall be deemed to have agreed, by virtue of their
ownership thereof, to provide to the Board, at such times and in such
detail as the Board may reasonably request, any information that the
Board may require to make such determinations.
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(c) Unilateral repurchase right
Subject to Section 42A of the Act, if the Board in its absolute and
unfettered discretion, on behalf of the Company, determines that share
ownership by any Member (with or without the application of bye-law
46(b)) may result in adverse tax, regulatory or legal consequences to
the Company, any of its subsidiaries or any of the Members, the
Company will have the option, but not the obligation, to repurchase
all or part of the shares held by such Member to the extent the Board,
in the reasonable exercise of its discretion, determines it is
necessary to avoid or cure such adverse consequences for immediately
available funds in an amount equal to the Fair Market Value of such
shares on the date the Company sends the Repurchase Notice (the
"Repurchase Price"); provided that the Board will use its best efforts
to exercise this option equally among similarly situated Members (to
the extent possible under the circumstances). Such right to repurchase
shall not be limited to repurchases from an Over-the-Threshold Common
Shareholder nor to the number of shares held by any Over-the-Threshold
Common Shareholder sufficient to reduce its shareholdings to the
maximum number of shares such that it will no longer be considered an
Over-the-Threshold Common Shareholder. In that event, the Company will
also be entitled to assign its repurchase right to a third party or
parties including the other Members, with the consent of such
assignee. Each Member shall be bound by the determination by the
Company to repurchase or assign its right to repurchase such Member's
shares and, if so required by the Company, shall sell the number of
shares that the Company requires it to sell.
In the event that the Company or its assignee(s) determines to
repurchase any such shares, the Company shall provide each Member
concerned with written notice of such determination ("Repurchase
Notice") at least seven (7) calendar days prior to such repurchase or
such shorter period as each such Member may authorize, specifying the
date on which any such shares are to be repurchased and the Repurchase
Price. The Company may revoke the Repurchase Notice at any time before
it (or its assignee) pays for the shares. Neither the Company nor its
assignee(s) shall be obliged to give general notice to the Members of
any intention to purchase or the conclusion of any purchase of shares.
Payment of the Repurchase Price by the Company or its assignee(s)
shall be by wire transfer and made at a closing to be held no less
than seven (7) calendar days after receipt of the Repurchase Notice by
the Member.
(d) Unilateral repurchase right in the event of involuntary transfer
If a Member shall be involuntarily dissolved or liquidated or shall
have entered in respect of it an order for relief under the United
States Bankruptcy Code (or any similar law of any applicable
jurisdiction) or shall otherwise be required to transfer involuntarily
any or all of its shares pursuant to a court order, foreclosure, tax
lien, government seizure, death or otherwise, and, in any such case as
a result thereof, any or all of such Member's shares (the "Involuntary
Transfer Shares") shall be actually or purportedly transferred or
otherwise disposed of (the "Involuntary Transfer"), such Member, or its
legal representative or successor, shall promptly give notice to the
Company of such transfer and the Company will have the option, but not
the obligation, to repurchase all or part of the Involuntary Transfer
Shares held by such Member for immediately available funds in an amount
equal to the Fair Market Value of such shares. In that event, the
Company will also be entitled to assign its repurchase right to a third
party or parties including the other Members, with the consent of such
assignee. Each Member shall be bound by the determination by the
Company to repurchase or assign its right to repurchase the Involuntary
Transfer Shares and, if so required by the Company, shall sell the
number of Involuntary Transfer Shares that the Board requires it to
sell.
In the event that the Company or its assignee(s) determines to
repurchase any Involuntary Transfer Shares, the Company or its
assignee(s) shall provide each Member concerned with written notice at
least thirty (30) calendar days prior to such repurchase or such
shorter period as each such Member may authorize, specifying the date
on which any such Involuntary Transfer Shares are to be repurchased and
the Repurchase Price. Neither the Company nor its assignee(s) shall be
obliged to give general notice to the Members of any intention to
purchase or the conclusion of any purchase of
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the Involuntary Transfer Shares. Payment of the Fair Market Value of
the Involuntary Transfer Shares by the Company or its assignee(s) shall
be by wire transfer and made at a closing to be held no later than the
later to occur of (i) thirty (30) calendar days after the date the
Repurchase Notice is sent to the Member or (ii) fifteen (15) calendar
days after the date that the final governmental approval or consent to
the consummation of the purchase, if required, is obtained.
47. Variation of rights and alteration of share capital
(a) If the share capital is divided into different classes of shares, the
rights attached to any class (unless otherwise provided by the terms of
issue of the shares of that class) may, whether or not the Company is
being wound-up, be varied with the consent in writing of the holders of
not less than seventy-five percent (75%) of the issued and outstanding
shares of that class, or with the sanction of a resolution passed by
the holders of not less than seventy-five percent (75%) of the issued
and outstanding shares of that class at a separate general meeting of
the holders of the shares of the class held in accordance with Section
47(7) of the Act. The rights conferred upon the holders of the shares
of any class issued with preferred or other rights shall not, unless
otherwise expressly provided by the terms of issue of the shares of
that class, be deemed to be varied by the creation or issue of further
shares ranking pari passu therewith.
(b) The Company may from time to time by resolution of the Members change
the currency denomination of, increase, alter or reduce its share
capital in accordance with the provisions of Sections 45 and 46 of the
Act, provided, however, that any resolution of the Members to alter or
reduce its share capital shall be by the affirmative vote of Members
representing not less than seventy five percent (75%) of the votes
conferred by the issued and outstanding Common Shares entitled to vote.
Where, on any alteration of share capital, fractions of shares or some
other difficulty would arise, the Board may deal with or resolve the
same in such manner as it thinks fit including, without limitation, the
issue to Members, as appropriate, of fractions of shares and/or
arranging for the sale or transfer of the fractions of shares of
Members.
48. Registered holder of shares
(a) Except as ordered by a court of competent jurisdiction or as required
by law, no person shall be recognized by the Company as holding any
share unless such person is the registered holder, and the Company
shall not be bound by or required in any way to recognize (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 in respect of any share except an absolute right to
the entirety thereof in the registered holder.
(b) Any dividend, interest or other monies payable in cash in respect of
shares may be paid by cheque or draft sent through the post directed to
the Member at such Member's address in the Register of Members or, in
the case of joint holders, to such address of the holder first named in
the Register of Members, or to such person and to such address as the
holder or joint holders may in writing direct. If two (2) or more
persons are registered as joint holders of any shares, any one (1) can
give an effectual receipt for any dividend paid in respect of such
shares.
49. Death of a joint holder
Where two (2) or more persons are registered as joint holders of a share or
shares, then in the event of the death of any joint holder or holders, the
remaining joint holder or holders shall be absolutely entitled to the said
share or shares and the Company shall recognize no claim in respect of the
estate of any joint holder except in the case of the last survivor of such
joint holders.
50. Share certificates
(a) Every Member shall be entitled to a certificate under the seal of the
Company (or a facsimile thereof) specifying the number and, where
appropriate, the class of shares held by such Member
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and whether the same are fully paid up and, if not, how much has been
paid thereon. The Board may by resolution determine, either generally
or in a particular case, that any or all signatures on certificates may
be printed thereon or affixed by mechanical means.
(b) The Company shall be under no obligation to complete and deliver a
share certificate unless specifically called upon to do so by the
person to whom such shares have been allotted.
(c) If any such certificate shall be proved to the satisfaction of the
Board to have been worn out, lost, mislaid or destroyed the Board may
cause a new certificate to be issued and request an indemnity for the
lost certificate if it sees fit.
REGISTER OF MEMBERS
51. Contents of Register of Members
The Board shall cause to be kept in one (1) or more books a Register of
Members and shall enter therein the following particulars:
(a) the name and address of each Member, the number and the class of shares
held by such Member and the amount paid or agreed to be considered as
paid on such shares;
(b) the date on which each person was entered in the Register of Members;
(c) the date on which any person ceased to be a Member for one (1) year
after such person so ceased; and
(d) the country where such Member is resident.
52. Inspection of Register of Members
The Register of Members shall be open to inspection by Members or other
entitled persons at the registered office of the Company on every business
day, subject to such reasonable restrictions as the Board may impose, so
that not less than two (2) hours in each business day is allowed for
inspection. The Register of Members may, after notice has been given by
advertisement in an appointed newspaper to that effect, be closed for any
time or times not exceeding in the whole thirty (30) days in each year.
CLOSING REGISTER OF MEMBERS OR SETTING RECORD DATE
53. Closing Register of Members
For the purpose of determining Members who are holders of shares entitled
to notice of or to vote at any general meeting of Members or any
adjournment thereof, or entitled to receive payment of any dividend, or in
order to make a determination of Members for any other proper purpose, the
Directors may provide that the Register of Members shall be closed for
transfers for a stated period but not to exceed in any case thirty (30)
days. If the Register of Members shall be so closed for the purpose of
determining Members entitled to notice of or to vote at a general meeting
of Members, such Register shall be so closed for at least ten (10) days
immediately preceding such meeting and the record date for such
determination shall be the date of the closure of the Register of Members.
54. Setting of record date
In lieu of or apart from closing the Register of Members, the Directors may
fix any date as the record date for:
(a) determining the Members entitled to receive any dividend; and
(b) determining the Members entitled to receive notice of and to vote at
any general meeting of the Company.
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TRANSFER OF SHARES
55. Instrument of transfer
(a) Subject to the Act and to such of the restrictions contained in these
Bye-laws or elsewhere as may be applicable, any Member may transfer
all or any of his shares by an instrument of transfer as specified
herein.
(b) An instrument of transfer shall be in the form or as near thereto as
circumstances admit of Form "B" in the Schedule hereto or in such
other common form as the Board may accept. Such instrument of transfer
shall be signed by or on behalf of the transferor and transferee
provided that, in the case of a fully paid share, the Board may accept
the instrument signed by or on behalf of the transferor alone. The
transferor shall be deemed to remain the holder of such share until
the same has been transferred to the transferee in the Register of
Members.
(c) The Board may refuse to recognize any instrument of transfer unless it
is accompanied by the certificate in respect to the shares to which it
relates and by such other evidence as the Board may reasonably require
to show the right of the transferor to make the transfer.
56. Restrictions on transfer
(a) Any transfer of shares (or any interest therein) that results in a
Member becoming an Over-the-Threshold Common Shareholder without the
approval of more than 50% of the Directors then in office shall not be
registered in the share register of the Company and shall be void and
of no effect.
(b) Any transfer of shares (or any interest therein) that results in a
Member (other than a Member which is a registered "Investment Company"
under the United States Investment Company Act of 1940, as amended)
directly, indirectly or beneficially owning (within the meaning of
Section 13(d) of the Exchange Act) more than 5% of the outstanding
capital stock of the Company without the approval of more than 50% of
the Directors then in office shall not be registered in the share
register of the Company and shall be void and of no effect.
(c) Without limiting the foregoing, the Board shall decline to approve or
register a transfer of shares unless all applicable consents,
authorisations, permissions or approvals of any governmental body or
agency in Bermuda, the United States or any other applicable
jurisdiction required to be obtained prior to such transfer shall have
been obtained.
(d) If the Board declines to approve or register a transfer, it shall,
within ten (10) days after the date on which the Company received
notice of the transfer, send to the transferor and transferee notice
of such refusal.
(e) The restrictions on transfer authorized by this Bye-law shall not be
imposed in any circumstances in a way that would interfere with the
settlement of trades or transactions entered into through the
facilities of the New York Stock Exchange, Inc.; provided, however,
that the Company may decline to register transfers in accordance with
these Bye-laws and resolutions of the Board after a settlement has
taken place.
TRANSMISSION OF SHARES
57. Representative of deceased Member
In the case of the death of a Member, the survivor or survivors where the
deceased Member was a joint holder, and the legal personal representatives
of the deceased Member where the deceased Member was a sole holder, shall
be the only persons recognised by the Company as having any title to the
deceased Member's interest in the shares. Subject to the provisions of
Section 52 of the Act, for the purpose of this Bye-law, "legal personal
representative" means the executor or administrator of a deceased Member or
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<PAGE> 24
such other person as the Board may in its absolute discretion decide as
being properly authorised to deal with the shares of a deceased Member.
58. Registration on death or bankruptcy
Any person becoming entitled to a share in consequence of the death or
bankruptcy of any Member may be registered as a Member upon such evidence
as the Board may deem sufficient or may elect to nominate some person to be
registered as a transferee of such share, and in such case the person
becoming entitled shall execute in favour of such nominee an instrument of
transfer in the form, or as near thereto as circumstances admit, of Form
"C" in the Schedule hereto. On the presentation thereof to the Board,
accompanied by such evidence as the Board may require to prove the title of
the transferor and such other information as the Board shall deem necessary
or appropriate, and the transferee shall be registered as a Member but the
Board shall, in either case, have the same right to decline or suspend
registration as it would have had in the case of a transfer of the share by
that Member before such Member's death or bankruptcy, as the case may be.
If the person so becoming entitled shall elect to be registered as a
holder, such person shall deliver or send to the Company a notice in
writing signed by such person stating that it so elects.
59. Successors of Members
A person becoming entitled to a share by reason of the death or bankruptcy
of the holder (or in any other case than by transfer) shall be entitled to
the same dividends and other advantages to which he would be entitled if he
were the registered holder of the share, except that he shall not, before
being registered as a holder in respect of the share, be entitled in
respect of it to exercise any right conferred by virtue of being a holder
in relation to meetings of the Company, provided, however, that the
Directors may at any time give notice requiring any such person to elect
either to be registered himself or to transfer the share and if the notice
is not complied with within ninety (90) days the Directors may thereafter
withhold payment of all dividends, bonuses or other monies payable in
respect of the share until the requirements of the notice have been
complied with.
DIVIDENDS AND OTHER DISTRIBUTIONS
60. Declaration of dividends by the Board
Subject to any rights or restrictions at the time lawfully attached to any
class of shares and subject to the provisions of these Bye-laws, the Board
may, in accordance with Section 54 of the Act, by the affirmative vote of
more than fifty percent (50%) of the votes of the Directors then in office,
declare a dividend to be paid to the Members, in proportion to the number
of shares held by them, and such dividend may be paid in cash or wholly or
partly in specie in which case the Board may fix the value for distribution
in specie of any assets.
61. Other distributions
The Board may, by the affirmative vote of more than fifty percent (50%) of
the votes of the Directors then in office, declare and make such other
distributions (in cash or in specie) to the Members as may be lawfully made
out of the assets of the Company.
62. Reserve fund
The Board may from time to time before declaring a dividend set aside, out
of the surplus or profits of the Company, such sum as it thinks proper as a
reserve fund to be used to meet contingencies or for equalising dividends
or for any other special purpose.
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63. Deduction of amounts due to the Company
The Board may deduct from the dividends or distributions payable to any
Member all monies due from such Member to the Company.
64. Unclaimed dividends
Any dividend unclaimed for a period of six (6) years from the date of
declaration of such dividend shall be forfeited and shall revert to the
Company and the payment by the Board of any unclaimed dividend, 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.
65. Interest on dividend
No dividend or distribution shall bear interest against the Company.
CAPITALIZATION
66. Capitalization
The Board may resolve to capitalise any part of the amount for the time
being standing to the credit of any of the Company's share premium or other
reserve accounts or to the credit of the profit and loss account or
otherwise available for distribution by applying such sum in paying up
unissued shares to be allotted as fully paid shares pro rata to the
Members.
The Company may capitalise any sum standing to the credit of a reserve
account or sums otherwise available for dividend or distribution by
applying such amounts in paying up in full partly paid shares of those
Members who would have been entitled to such sums if they were distributed
by way of dividend or distribution.
ACCOUNTS AND FINANCIAL STATEMENTS
67. Record of account
The Board shall cause to be kept proper records of account with respect to
all transactions of the Company and in particular with respect to:
(a) all sums of money received and expended by the Company and the matters
in respect of which the receipt and expenditure relates;
(b) all sales and purchases of goods by the Company; and
(c) the assets and liabilities of the Company.
Such records of account shall be kept at the registered office of the
Company or, subject to Section 83(2) of the Act, at such other place as
the Board thinks fit and shall be available for inspection by the
Directors during normal business hours.
68. Financial year end
The financial year end of the Company may be determined by resolution of
the Board and failing such resolution shall be December 31 in each year.
69. Financial statements
Subject to any rights to waive laying of accounts pursuant to Section 88 of
the Act, financial statements as required by the Act shall be laid before
the Members in general meeting.
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AUDIT
70. Appointment of Auditor
Subject to Section 88 of the Act, at the annual general meeting or at a
subsequent special general meeting in each year, an independent
representative of the Members shall be appointed by them as Auditor of the
accounts of the Company. Such Auditor may be a Member but no Director,
Officer or employee of the Company shall, during his or her continuance in
office, be eligible to act as an Auditor of the Company.
71. Remuneration of Auditor
The remuneration of the Auditor shall be fixed by the Company in general
meeting or in such manner as the Members may determine.
72. Vacation of office of Auditor
If the office of Auditor becomes vacant by the resignation or death of the
Auditor, or by the Auditor becoming incapable of acting by reason of
illness or other disability at a time when the Auditor's services are
required, the Board may fill the vacancy thereby created.
73. Access to books of the Company
The Auditor shall at all reasonable times have access to all books kept by
the Company and to all accounts and vouchers relating thereto, and the
Auditor may call on the Directors or Officers of the Company for any
information in their possession relating to the books or affairs of the
Company.
74. Report of the Auditor
(a) Subject to any rights to waive laying of accounts or appointment of an
Auditor pursuant to Section 88 of the Act, the accounts of the Company
shall be audited at least once in every year.
(b) The financial statements provided for by these Bye-laws shall be
audited by the Auditor in accordance with generally accepted auditing
standards. The Auditor shall make a written report thereon in
accordance with generally accepted auditing standards and the report of
the Auditor shall be submitted to the Members in general meeting.
(c) The generally accepted auditing standards referred to in subparagraph
(b) of this Bye-law may be those of a country or jurisdiction other
than Bermuda or which have been appointed pursuant to section 90 of the
Act. If so, the financial statements and the report of the Auditor must
disclose this fact and identify the generally accepted auditing
standards used.
NOTICES
75. Notices to Members of the Company
A notice may be given by the Company to any Member either by delivering it
to such Member in person or by sending it to such Member's address in the
Register of Members or to such other address given for the purpose. For the
purposes of this Bye-law, a notice may be sent by mail, courier service,
cable, telex, telecopier, facsimile or other mode of representing words in
a legible and non-transitory form. If such notice is sent by next-day
courier it shall be deemed to have been given the day following sending
and, if by registered mail, five days following the sending.
76. Notices to joint Members
Any notice required to be given to a Member shall, with respect to any
shares held jointly by two (2) or more persons, be given to whichever of
such persons is named first in the Register of Members and notice so given
shall be sufficient notice to all the holders of such shares.
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77. Service and delivery of notice
Any notice shall be deemed to have been served at the time when the same
would be delivered in the ordinary course of transmission and, in proving
such service, it shall be sufficient to prove that the notice was properly
addressed and prepaid, if posted, and the time when it was posted,
delivered to the courier or to the cable company or transmitted by telex,
facsimile or other method as the case may be.
REGISTERED OFFICE
78. The registered office of the Company shall be at such address as the Board
may fix from time to time by resolution.
SEAL OF THE COMPANY
79. The seal
The seal of the Company shall be in such form as the Board may from time to
time determine. The Board may adopt one or more duplicate seals for use
outside Bermuda.
80. Manner in which seal is to be affixed
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 the purpose, provided
that any Director, or Officer, may affix the seal of the Company attested
by such Director or Officer's signature only 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 or Officer. Any such signature may be printed or affixed by
mechanical means on any share certificate, debenture stock certificate or
other security certificate.
WINDING-UP
81. Determination to liquidate
The Company shall be wound up voluntarily by resolution of the Members.
82. Winding-up/distribution by liquidator
If the Company shall be wound up the liquidator may, with the sanction of a
resolution of the Members, divide among the Members in specie or in 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 purpose, set
such value as he or she deems fair upon any property to be divided as
aforesaid and may determine how such division shall be carried out as
between the Members or different classes of Members. The liquidator may,
with the like sanction, vest the whole or any part of such assets in
trustees upon such trusts for the benefit of the Members as the liquidator
shall think fit, but so that no Member shall be compelled to accept any
shares or other securities or assets whereon there is any liability.
ALTERATION OF MEMORANDUM OF ASSOCIATION
AND BYE-LAWS
83. Alteration of Memorandum of Association and Bye-Laws
Except as required by the Act, neither the Memorandum of Association of the
Company nor any Bye-law shall be rescinded, altered or amended and no new
Bye-law shall be made until the same has been approved by a resolution of
the Directors and confirmed by a resolution of the Members.
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SCHEDULE-FORM A
TRENWICK GROUP LTD.
PROXY
of the holder of share(s) in the above-named
Company hereby appoint ____________ or failing him/her____________or failing
him/her ____________ as my proxy to vote on my behalf at the General Meeting of
the Company to be held on the day of , 20 , and at any
adjournment thereof.
Dated this day of , 20
Signed by the above-named
____________________________________
____________________________________
Witness
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<PAGE> 29
SCHEDULE-FORM B
TRANSFER OF A SHARE OR SHARES
FOR VALUE RECEIVED __________________ [amount] ________________________
[transferor] hereby sell(s), assign(s) and transfer(s) unto
________________________ [transferee] of ________________________ [address] with
residence in [country], [number of shares] shares of TRENWICK GROUP LTD.
Dated __________________
________________________
(Transferor)
In the presence of:
________________________
(Witness)
________________________
(Transferee)
In the presence of:
________________________
(Witness)
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<PAGE> 30
SCHEDULE-FORM C
TRANSFER BY A PERSON
BECOMING ENTITLED ON DEATH OF A MEMBER
I/We having become entitled in consequence of the death of [name of the deceased
Member] to [number] share(s) numbered [number in figures] standing in the
register of members of TRENWICK GROUP LTD. in the name of the said [name of
deceased Member] instead of being registered myself/ourselves request to have
[name of transferee] (the "Transferee") registered as a transferee of such
share(s), and I/we do hereby accordingly transfer the said share(s), to the
Transferee to hold the same unto the Transferee, his or her executors,
administrators and assigns, subject to the conditions on which the same were
held at the time of the execution thereof; and the Transferee does hereby agree
to take the said share(s) subject to the same conditions.
WITNESS our hands this __ day of ____________, 20__
Signed by the above-named )
[person or persons entitled] )
in the presence of: )
Signed by the above-named )
[transferee] )
in the presence of: )
26
