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EXHIBIT 3.2
B Y E - L A W S
of
W. P. STEWART & CO., LTD.
INTERPRETATION
1. (1) In these Bye-laws unless the context otherwise requires -
"AFFILIATE" as to any person shall mean any other person which
directly or indirectly through one or more intermediaries
controls, is controlled by, or is under common control with such
person;
"BERMUDA" means the Islands of Bermuda;
"BOARD" means the Board of Directors of the Company or the
Directors present at a meeting of Directors at which there is a
quorum;
"THE CODE" means the Internal Revenue code of 1986, as amended, of
the United States of America;
"THE COMPANIES ACTS" means every Bermuda statute from time to time
in force concerning companies insofar as the same applies to the
Company;
"COMPANY" means the company incorporated in Bermuda under the name
of W. P. Stewart & Co., Ltd. on the 29th day of June, 1998;
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of a person, whether through the ownership of voting
securities, by contract or otherwise.
"DIRECTOR" means such person or persons as shall be appointed to
the Board from time to time pursuant to these Bye-laws;
"EXCHANGE ACT" means the United States Securities Exchange Act of
1934;
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"EXEMPTED SHAREHOLDERS" means WPSII, Inc. or its Affiliates, the
Subsidiaries of the Company, certain employee benefit plans of the
Company as may be designated by the Board or any other person
expressly deemed by the Board to be an Exempted Shareholder for
the purposes of Bye-law 64;
"OFFERINGS" means the offerings of shares of the Company as
defined in the prospectus preliminarily filed by the Company and
dated May 28, 1999 and to be amended and supplemented thereafter;
"OFFICER" means a person appointed by the Board pursuant to
Bye-law 117 of these Bye-laws and shall not include an auditor of
the Company;
"PAID UP" means paid up or credited as paid up;
"REGISTER" means the Register of Shareholders of the Company;
"REGISTERED OFFICE" means the registered office for the time being
of the Company;
"RESIDENT REPRESENTATIVE" means the person (or, if permitted in
accordance with the Companies Acts, the company) appointed to
perform the duties of resident representative set out in the
Companies Acts and includes any assistant or deputy Resident
Representative appointed by the Board to perform any of the duties
of the Resident Representative;
"RESOLUTION" means a resolution of the Shareholders or, where
required, of a separate class or separate classes of Shareholders;
"SEAL" means the common seal of the Company and includes any
duplicate thereof;
"SECRETARY" includes a temporary or assistant or deputy Secretary
and any person appointed by the Board to perform any of the duties
of the Secretary;
"SHAREHOLDER" means a shareholder or member of the Company;
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"SPECIFIED PLACE" means the place, if any, specified in the notice
of any meeting of the shareholders, or adjourned meeting of the
shareholders, at which the chairman of the meeting shall preside;
"SUBSIDIARY" of any person at any time shall mean (i) any company,
trust or other entity of which 50% or more (by number of shares or
number of votes) of the outstanding capital stock or shares of
beneficial interest normally entitled to vote for the election of
one or more directors or trustees is a such time owned directly or
indirectly by such person or one or more of such person's
Subsidiaries, or any partnership of which such person is a general
partner or of which 50% or more of the partnership interests is at
the time directly or indirectly owned by such person or one or
more of such person's Subsidiaries, and (ii) any company, trust,
partnership or other entity which is Controlled or capable of
being Controlled by such person or one or more of such person's
Subsidiaries; or capable of being Controlled by such person or one
ore more of such person's Subsidiaries;
"THESE BYE-LAWS" means these Bye-laws in their present form or as
from time to time amended;
(2) For the purposes of these Bye-laws a corporation shall be deemed
to be present in person if its representative duly authorised
pursuant to the Companies Acts is present;
(3) Words importing only the singular number include the plural number
and vice versa;
(4) Words importing only the masculine gender include the feminine and
neuter genders respectively;
(5) Words importing persons include companies or associations or
bodies of persons, whether corporate or un-incorporate;
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(6) Reference to writing shall include typewriting, printing,
lithography, photography and other modes of representing or
reproducing words in a legible and non-transitory form;
(7) Any words or expressions defined in the Companies Acts in force at
the date when these Bye-laws or any part thereof are adopted shall
bear the same meaning in these Bye-laws or such part (as the case
may be);
(8) In these Bye-laws, (a) powers of delegation shall not be
restrictively construed but the widest interpretation shall be
given thereto; (b) the word "Board" in the context of the exercise
of any power contained in these Bye-laws includes any committee
consisting of one or more Directors, any Director holding
executive office and any local or divisional Board, manager or
agent of the Company to which or, as the case may be, to whom the
power in question has been delegated; (c) no power of delegation
shall be limited by the existence or, except where expressly
provided by the terms of delegation, the exercise of any other
power of delegation; and (d) except where expressly provided by
the terms of delegation, the delegation of a power shall not
exclude the concurrent exercise of that power by any other body or
person who is for the time being authorised to exercise it under
these Bye-laws or under another delegation of the powers.
REGISTERED OFFICE
2. The Registered Office shall be at such place in Bermuda as the Board
shall from time to time appoint.
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SHARE RIGHTS
3. Subject to any special rights conferred on the holders of any share or
class of shares, any share in the Company may be issued with or have
attached thereto such preferred, deferred, qualified or other special
rights or such restrictions, whether in regard to dividend, voting,
return of capital or otherwise, as the Company may by Resolution
determine or, if there has not been any such determination or so far as
the same shall not make specific provision, as the Board may determine.
4. (1) Subject to the Companies Acts, any preference shares may, with the
sanction of a resolution of the Board, be issued on terms:
(a) that they are to be redeemed on the happening of a
specified event or on a given date; and/or,
(b) that they are liable to be redeemed at the option of the
Company; and/or,
(c) if authorised by the memorandum/Incorporating Act of the
Company, that they are liable to be redeemed at the option
of the holder.
The terms and manner of redemption shall be provided for in such
resolution of the Board and shall be attached to but shall not
form part of these Bye-laws.
(2) The Board may, at its discretion and without the sanction of a
resolution authorise the purchase by the Company of its own
shares, of any class, at any price (whether at par or above or
below par), and so that any shares to be so purchased may be
selected in any manner whatsoever, upon such terms as the Board
may in its discretion determine PROVIDED ALWAYS that such purchase
is effected in accordance with the provisions of the Companies
Acts.
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MODIFICATION OF RIGHTS
5. Subject to the Companies Acts, all or any of the special rights for the
time being attached to any class of shares for the time being issued may
from time to time (whether or not the Company is being wound up) be
altered or abrogated with the consent in writing of the holders of not
less than seventy five percent of the issued shares of that class or with
the sanction of a resolution passed at a separate general meeting of the
holders of such shares voting in person or by proxy. To any such separate
general meeting, all the provisions of these Bye-laws as to general
meetings of the Company shall mutatis mutandis apply, but so that the
necessary quorum shall be two or more persons holding or representing by
proxy the majority of the shares of the relevant class, that every holder
of shares of the relevant class shall be entitled on a poll to one vote
for every such share held by him and that any holder of shares of the
relevant class present in person or by proxy may demand a poll; provided,
however, that if the Company or a class of Shareholders shall have only
one Shareholder, one Shareholder present in person or by proxy shall
constitute the necessary quorum.
6. For the purposes of this Bye-law, unless otherwise expressly provided by
the rights attached to any shares or class of shares, those rights
attaching to any class of shares for the time being shall be deemed to be
altered by the reduction of the capital paid up on those shares otherwise
than by a purchase or redemption by the Company of such shares and by the
allotment of other shares ranking in priority for payment of a dividend
or in respect of capital or which confer on the holders voting rights
more favourable than those conferred by such first mentioned shares but
shall not otherwise be deemed to be altered by the creation or issue of
further shares ranking pari passu therewith or by the purchase or
redemption by the Company of any of its own shares.
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SHARES
7. Subject to the provisions of these Bye-laws, the unissued shares of the
Company (whether forming part of the original capital or any increased
capital) shall be at the disposal of the Board, which may offer, allot,
grant options over or otherwise dispose of them to such persons, at such
times and for such consideration and upon such terms and conditions as
the Board may determine.
8. The Board may in connection with the issue of any shares exercise all
powers of paying commission and brokerage conferred or permitted by law.
Subject to the provisions of the Companies Acts, any such commission or
brokerage may be satisfied by the payment of cash or by the allotment of
fully or partly paid shares or partly in one way and partly in the other.
9. Except as ordered by a court of competent jurisdiction or as required by
law, no person shall be recognised by the Company as holding any share
upon trust and the Company shall not be bound by or required in any way
to recognise (even when having notice thereof) any equitable, contingent,
future or partial interest in any share or any interest in any fractional
part of a share or (except only as otherwise provided in these Bye-laws,
or by law) any other right in respect of any share except an absolute
right to the entirety thereof in the registered holder.
CERTIFICATES
10. The Company shall not issue certificates in respect of any of its shares,
unless the Board determines that share certificates shall be issued
either for a particular class of shares or for all shares of the Company,
as the Board may in its discretion determine. The proper time, issue and
delivery of any such
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certificates shall be governed by the Companies Acts. If share
certificates are issued by the Company, then in the case of a share held
jointly by several persons, delivery of a certificate to one of several
joint holders shall be sufficient delivery to all.
11. If a share certificate is issued, and is defaced, lost or destroyed it
may be replaced without fee but on such terms (if any) as to evidence and
indemnity and to payment of the costs and out of pocket expenses of the
Company in investigating such evidence and preparing such indemnity as
the Board may think fit and, in case of defacement, on delivery of the
old certificate to the Company.
12. Any certificates for share or loan capital or other securities of the
Company (other than letters of allotment, scrip certificates and other
like documents) shall, except to the extent that the terms and conditions
for the time being relating thereto otherwise provide, be issued under
the Seal. The Board may by resolution determine, either generally or in
any particular case, that any signatures on any such certificates need
not be autographic but may be affixed to such certificates by some
mechanical means or may be printed thereon or that such certificates need
not be signed by any persons, or may determine that a representation of
the Seal may be printed on any such certificates.
13. Nothing in these Bye-laws shall prevent title to any securities of the
Company from being evidenced and/or transferred without a written
instrument in accordance with regulations made from time to time in this
regard under the Companies Acts, and the Board shall have power to
implement any arrangements which it may think fit for such evidencing
and/or transfer which accord with those regulations.
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LIEN
14. The Company shall have a first and paramount lien on every share (not
being a fully paid share) for all moneys, whether presently payable or
not, called or payable, at a date fixed by or in accordance with the
terms of issue of such share in respect of such share, and the Company
shall also have a first and paramount lien on every share (other than a
fully paid share) standing registered in the name of a Shareholder,
whether singly or jointly with any other person, for all the debts and
liabilities of such Shareholder or his estate to the Company, whether the
same shall have been incurred before or after notice to the Company of
any interest of any person other than such Shareholder, and whether the
time for the payment or discharge of the same shall have actually arrived
or not, and notwithstanding that the same are joint debts or liabilities
of such Shareholder or his estate and any other person, whether a
Shareholder or not. The Company's lien on a share shall extend to all
dividends payable thereon. The Board may at any time, either generally or
in any particular case, waive any lien that has arisen or declare any
share to be wholly or in part exempt from the provisions of this Bye-law.
15. The Company may sell, in such manner as the Board may think fit, any
share on which the Company has a lien but no sale shall be made unless
some sum in respect of which the lien exists is presently payable nor
until the expiration of fourteen days after a notice in writing, stating
and demanding payment of the sum presently payable and giving notice of
the intention to sell in default of such payment, has been served on the
holder for the time being of the share.
16. The net proceeds of sale by the Company of any shares on which it has a
lien shall be applied in or towards payment or discharge of the debt or
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liability in respect of which the lien exists so far as the same is
presently payable, and any residue shall (subject to a like lien for
debts or liabilities not presently payable as existed upon the share
prior to the sale) be paid to the person who was the holder of the share
immediately before such sale. For giving effect to any such sale the
Board may authorise some person to transfer the share sold to the
purchaser thereof. The purchaser shall be registered as the holder of the
share and he shall not be bound to see to the application of the purchase
money, nor shall his title to the share be affected by any irregularity
or invalidity in the proceedings relating to the sale.
17. Whenever any law for the time being of any country, state or place
imposes or purports to impose any immediate or future or possible
liability upon the Company to make any payment or empowers any government
or taxing authority or government official to require the Company to make
any payment in respect of any shares registered in any of the Company's
registers as held either jointly or solely by any Shareholder or in
respect of any dividends, bonuses or other monies due or payable or
accruing due or which may become due or payable to such Shareholder by
the Company on or in respect of any shares registered as aforesaid or for
or on account or in respect of any Shareholder and whether in consequence
of:-
(a) the death of such Shareholder;
(b) the non-payment of any income tax or other tax by such
Shareholder;
(c) the non-payment of any estate, probate, succession, death, stamp,
or other duty by the executor or administrator of such Shareholder
or by or out of his estate;
(d) any other act or thing;
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in every such case (except to the extent that the rights conferred upon
holders of any class of shares render the Company liable to make
additional payments in respect of sums withheld on account of the
foregoing):-
(i) the Company shall be fully indemnified by such Shareholder or his
executor or administrator from all liability;
(ii) the Company shall have a lien upon all dividends and other monies
payable in respect of the shares registered in any of the
Company's registers as held either jointly or solely by such
Shareholder for all monies paid or payable by the Company in
respect of such shares or in respect of any dividends or other
monies as aforesaid thereon or for or on account or in respect of
such Shareholder under or in consequence of any such law together
with interest at the rate of fifteen percent per annum thereon
from the date of payment to date of repayment and may deduct or
set off against such dividends or other monies payable as
aforesaid any monies paid or payable by the Company as aforesaid
together with interest as aforesaid;
(iii) the Company may recover as a debt due from such Shareholder or his
executor or administrator wherever constituted any monies paid by
the Company under or in consequence of any such law and interest
thereon at the rate and for the period aforesaid in excess of any
dividends or other monies as aforesaid then due or payable by the
Company;
(iv) the Company may if any such money is paid or payable by it under
any such law as aforesaid refuse to register a transfer of any
shares by any such Shareholder or his executor or administrator
until such money and interest as aforesaid is set off or deducted
as aforesaid or in case the same exceeds the amount of any such
dividends or other monies as aforesaid then due or payable by the
Company until such excess is paid to the Company.
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Subject to the rights conferred upon the holders of any class of shares
nothing herein contained shall prejudice or affect any right or remedy
which any law may confer or purport to confer on the Company and as
between the Company and every such Shareholder as aforesaid, his estate
representative, executor, administrator and estate wheresoever
constituted or situate, any right or remedy which such law shall confer
or purport to confer on the Company shall be enforceable by the Company.
CALLS ON SHARES
18. The Board may from time to time make calls upon the Shareholders in
respect of any moneys unpaid on their shares (whether on account of the
par value of the shares or by way of premium) and not by the terms of
issue thereof made payable at a date fixed by or in accordance with such
terms of issue, and each Shareholder shall (subject to the Company
serving upon him at least fourteen days notice specifying the time or
times and place of payment) pay to the Company at the time or times and
place so specified the amount called on his shares. A call may be revoked
or postponed as the Board may determine.
19. A call may be made payable by instalments and shall be deemed to have
been made at the time when the resolution of the Board authorising the
call was passed.
20. The joint holders of a share shall be jointly and severally liable to pay
all calls in respect thereof.
21. If a sum called in respect of the share shall not be paid before or on
the day appointed for payment thereof the person from whom the sum is due
shall pay interest on the sum from the day appointed for the payment
thereof to
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the time of actual payment at such rate as the Board may determine, but
the Board shall be at liberty to waive payment of such interest wholly or
in part.
22. Any sum which, by the terms of issue of a share, becomes payable on
allotment or at any date fixed by or in accordance with such terms of
issue, whether on account of the nominal amount of the share or by way of
premium, shall for all the purposes of these Bye-laws be deemed to be a
call duly made, notified and payable on the date on which, by the terms
of issue, the same becomes payable and, in case of non-payment, all the
relevant provisions of these Bye-laws as to payment of interest,
forfeiture or otherwise shall apply as if such sum had become payable by
virtue of a call duly made and notified.
23. The Board may on the issue of shares differentiate between the allottees
or holders as to the amount of calls to be paid and the times of payment.
FORFEITURE OF SHARES
24. If a Shareholder fails to pay any call or instalment of a call on the day
appointed for payment thereof, the Board may at any time thereafter
during such time as any part of such call or instalment remains unpaid
serve a notice on him requiring payment of so much of the call or
instalment as is unpaid, together with any interest which may have
accrued.
25. The notice shall name a further day (not being less than 14 days from the
date of the notice) on or before which, and the place where, the payment
required by the notice is to be made and shall state that, in the event
of non-payment on or before the day and at the place appointed, the
shares in respect of which such call is made or instalment is payable
will be liable to be forfeited. The Board may accept the surrender of any
share liable to be
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forfeited hereunder and, in such case, references in these Bye-laws to
forfeiture shall include surrender.
26. If the requirements of any such notice as aforesaid are not complied
with, any share in respect of which such notice has been given may at any
time thereafter, before payment of all calls or instalments and interest
due in respect thereof has been made, be forfeited by a resolution of the
Board to that effect. Such forfeiture shall include all dividends
declared in respect of the forfeited shares and not actually paid before
the forfeiture.
27. When any share has been forfeited, notice of the forfeiture shall be
served upon the person who was before forfeiture the holder of the share;
but no forfeiture shall be in any manner invalidated by any omission or
neglect to give such notice as aforesaid.
28. A forfeited share shall be deemed to be the property of the Company and
may be sold, re-offered or otherwise disposed of either to the person who
was, before forfeiture, the holder thereof or entitled thereto or to any
other person upon such terms and in such manner as the Board shall think
fit, and at any time before a sale, re-allotment or disposition the
forfeiture may be cancelled on such terms as the Board may think fit.
29. A person whose shares have been forfeited shall thereupon cease to be a
Shareholder in respect of the forfeited shares but shall, notwithstanding
the forfeiture, remain liable to pay to the Company all moneys which at
the date of forfeiture were presently payable by him to the Company in
respect of the shares with interest thereon at such rate as the Board may
determine from the date of forfeiture until payment, and the Company may
enforce payment without being under any obligation to make any allowance
for the value of the shares forfeited.
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30. An affidavit in writing that the deponent is a Director of the Company or
the Secretary and that a share has been duly forfeited on the date stated
in the affidavit shall be conclusive evidence of the facts therein stated
as against all persons claiming to be entitled to the share. The Company
may receive the consideration (if any) given for the share on the sale,
re-allotment or disposition thereof and the Board may authorise some
person to transfer the share to the person to whom the same is sold,
re-allotted or disposed of, and he shall thereupon be registered as the
holder of the share and shall not be bound to see to the application of
the purchase money (if any) nor shall his title to the share be affected
by any irregularity or invalidity in the proceedings relating to the
forfeiture, sale, re-allotment or disposal of the share.
REGISTER OF SHAREHOLDERS
31. The Secretary shall establish and maintain the Register at the Registered
Office or at such other place in Bermuda as the Board may from time to
time direct, in the manner prescribed by the Companies Acts. Unless the
Board otherwise determines, the Register shall be open to inspection in
the manner prescribed by the Companies Acts between 9.00 a.m. and 5.00
p.m. in Bermuda, on every working day. Unless the Board so determines, no
Shareholder or intending Shareholder shall be entitled to have entered in
the Register any indication of any trust or any equitable, contingent,
future or partial interest in any share or any interest in any fractional
part of a share and if any such entry exists or is permitted by the Board
it shall not be deemed to abrogate any of the provisions of Bye-law 9.
32. Subject to the provisions of the Companies Acts, the Company may keep one
or more overseas or branch registers in any place, and the Board may
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make, amend and revoke any such regulations as it may think fit
respecting the keeping of such registers.
REGISTER OF DIRECTORS AND OFFICERS
33. The Secretary shall establish and maintain a register of the Directors
and Officers of the Company as required by the Companies Acts. The
register of Directors and Officers shall be open to inspection in the
manner prescribed by the Companies Acts between 9:00 a.m. and 5:00 p.m.
in Bermuda on every working day.
TRANSFER OF SHARES
34. Subject to the Companies Acts and to such of the restrictions contained
in these Bye-laws as may be applicable, any Shareholder may transfer all
or any of his shares by an instrument of transfer in the usual common
form or in any other form which the Board may approve.
35. The instrument of transfer of a share shall be signed by or on behalf of
the transferor and where any share is not fully-paid, the transferee and
the transferor shall be deemed to remain the holder of the share until
the name of the transferee is entered in the Register in respect thereof.
All instruments of transfer when registered may be retained by the
Company. The Board may, in its absolute discretion and without assigning
any reason therefor, decline to register any transfer of any share which
is not a fully-paid share. The Board may also decline to register any
transfer unless:-
(1) the instrument of transfer is duly stamped and lodged with the
Company, at such place as the Board shall appoint for the purpose,
accompanied by the certificate for the shares (if any has been
issued) to which it relates, and such other evidence as the Board
may
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reasonably require to show the right of the transferor to make the
transfer,
(2) the instrument of transfer is in respect of only one class of
share,
(3) where applicable, the permission of the Bermuda Monetary Authority
with respect thereto has been obtained.
Subject to any directions of the Board from time to time in force, the
Secretary may exercise the powers and discretions of the Board under this
Bye-law and Bye-laws 34 and 36.
36. If the Board declines to register a transfer it shall, within one month
after the date on which the instrument of transfer was lodged, send to
the transferee notice of such refusal.
37. No fee shall be charged by the Company for registering any transfer,
probate, letters of administration, certificate of death or marriage,
power of attorney, distringas or stop notice, order of court or other
instrument relating to or affecting the title to any share, or otherwise
making an entry in the Register relating to any share.
TRANSMISSION OF SHARES
38. In the case of the death of a Shareholder, the survivor or survivors,
where the deceased was a joint holder, and the estate representative,
where he was sole holder, shall be the only person recognised by the
Company as having any title to his shares; but nothing herein contained
shall release the estate of a deceased holder (whether the sole or joint)
from any liability in respect of any share held by him solely or jointly
with other persons. For the purpose of this Bye-law, estate
representative means the person to whom probate or letters of
administration has or have been granted in Bermuda or, failing any
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such person, such other person as the Board may in its absolute
discretion determine to be the person recognised by the Company for the
purpose of this Bye-law.
39. Any person becoming entitled to a share in consequence of the death of a
Shareholder or otherwise by operation of applicable law may, subject as
hereafter provided and upon such evidence being produced as may from time
to time be required by the Board as to his entitlement, either be
registered himself as the holder of the share or elect to have some
person nominated by him registered as the transferee thereof. If the
person so becoming entitled elects to be registered himself, he shall
deliver or send to the Company a notice in writing signed by him stating
that he so elects. If he shall elect to have his nominee registered, he
shall signify his election by signing an instrument of transfer of such
share in favour of his nominee. All the limitations, restrictions and
provisions of these Bye-laws relating to the right to transfer and the
registration of transfer of shares shall be applicable to any such notice
or instrument of transfer as aforesaid as if the death of the Shareholder
or other event giving rise to the transmission had not occurred and the
notice or instrument of transfer was an instrument of transfer signed by
such Shareholder.
40. A person becoming entitled to a share in consequence of the death of a
Shareholder or otherwise by operation of applicable law shall (upon such
evidence being produced as may from time to time be required by the Board
as to his entitlement) be entitled to receive and may give a discharge
for any dividends or other moneys payable in respect of the share, but he
shall not be entitled in respect of the share to receive notices of or to
attend or vote at general meetings of the Company or, save as aforesaid,
to exercise in respect of the share any of the rights or privileges of a
Shareholder until he shall have become registered as the holder thereof.
The Board may at any time give notice requiring such person to elect
either to be registered himself or to
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transfer the share and, if the notice is not complied with within sixty
days, the Board may thereafter withhold payment of all dividends and
other moneys payable in respect of the shares until the requirements of
the notice have been complied with.
41. Subject to any directions of the Board from time to time in force, the
Secretary may exercise the powers and discretions of the Board under
Bye-laws 38, 39 and 40.
INCREASE OF CAPITAL
42. The Company may from time to time increase its capital by such sum to be
divided into shares of such par value as the Company by Resolution shall
prescribe.
43. The Company may, by the Resolution increasing the capital, direct that
the new shares or any of them shall be offered in the first instance
either at par or at a premium or (subject to the provisions of the
Companies Acts) at a discount to all the holders for the time being of
shares of any class or classes in proportion to the number of such shares
held by them respectively or make any other provision as to the issue of
the new shares.
44. The new shares shall be subject to all the provisions of these Bye-laws
with reference to lien, the payment of calls, forfeiture, transfer,
transmission and otherwise.
ALTERATION OF CAPITAL
45. The Company may from time to time by Resolution:-
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(1) divide its shares into several classes and attach thereto
respectively any preferential, deferred, qualified or special
rights, privileges or conditions;
(2) consolidate and divide all or any of its share capital into shares
of larger par value than its existing shares;
(3) sub-divide its shares or any of them into shares of smaller par
value than is fixed by its memorandum, so, however, that in the
sub-division the proportion between the amount paid and the
amount, if any, unpaid on each reduced share shall be the same as
it was in the case of the share from which the reduced share is
derived;
(4) make provision for the issue and allotment of shares which do not
carry any voting rights;
(5) cancel shares which, at the date of the passing of the resolution
in that behalf, have not been taken or agreed to be taken by any
person, and diminish the amount of its share capital by the amount
of the shares so cancelled; and
(6) change the currency denomination of its share capital.
Where any difficulty arises in regard to any division, consolidation, or
sub-division under this Bye-law, the Board may settle the same as it
thinks expedient and, in particular, may arrange for the sale of the
shares representing fractions and the distribution of the net proceeds of
sale in due proportion amongst the Shareholders who would have been
entitled to the fractions, and for this purpose the Board may authorise
some person to transfer the shares representing fractions to the
purchaser thereof, who shall not be bound to see to the application of
the purchase money nor shall his title to the shares be affected by any
irregularity or invalidity in the proceedings relating to the sale.
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46. Subject to the Companies Acts and to any confirmation or consent required
by law or these Bye-laws, the Company may by Resolution from time to time
convert any preference shares into redeemable preference shares.
REDUCTION OF CAPITAL
47. Subject to the Companies Acts, its memorandum and any confirmation or
consent required by law or these Bye-laws, the Company may from time to
time by Resolution authorise the reduction of its issued share capital or
any share premium or contributed surplus account in any manner.
48. In relation to any such reduction, the Company may by Resolution
determine the terms upon which such reduction is to be effected
including, in the case of a reduction of part only of a class of shares,
those shares to be affected.
GENERAL MEETINGS AND WRITTEN RESOLUTIONS
49. (1) The Board shall convene and the Company shall hold general
meetings as Annual General Meetings in accordance with the
requirements of the Companies Acts at such times and places as the
Board shall appoint. The Board may, whenever it thinks fit, and
shall, when requisitioned by shareholders pursuant to the
provisions of the Companies Acts, convene general meetings other
than Annual General Meetings which shall be called Special General
Meetings.
(2) Except in the case of the removal of auditors and Directors,
anything which may be done by resolution in general meeting may,
without a meeting and without any previous notice being required,
be done by resolution in writing, signed by all of the
Shareholders or their proxies, or in the case of a Shareholder
that is a corporation (whether
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or not a company within the meaning of the Companies Acts) on
behalf of such Shareholder, being all of the Shareholders of the
Company who at the date of the resolution in writing would be
entitled to attend a meeting and vote on the resolution. Such
resolution in writing may be signed in as many counterparts as may
be necessary.
(3) For the purposes of this Bye-law, the date of the resolution in
writing is the date when the resolution is signed by or on behalf
of, the last Shareholder to sign and any reference in any
enactment to the date of passing of a resolution is, in relation
to a resolution in writing made in accordance with this section, a
reference to such date.
(4) A resolution in writing made in accordance with this Bye-law is as
valid as if it had been passed by the Company in general meeting
or, if applicable, by a meeting of the relevant class of
Shareholders of the Company, as the case may be. A resolution in
writing made in accordance with this section shall constitute
minutes for the purposes of the Companies Acts and these Bye-laws.
NOTICE OF GENERAL MEETINGS
50. An Annual General Meeting shall be called by not less than 14 days notice
in writing and a Special General Meeting shall be called by not less than
14 days notice in writing. The notice shall be exclusive of the day on
which it is served or deemed to be served and of the day for which it is
given, and shall specify the place, day and time of the meeting, and, the
nature of the business to be considered. Notice of every general meeting
shall be given in any manner permitted by Bye-laws 140 and 141 to all
Shareholders other than such as, under the provisions of these Bye-laws
or the terms of issue of the shares they hold, are not entitled to
receive such notice from the Company and to each Director, and to any
Resident Representative who or
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which has delivered a written notice upon the Registered Office requiring
that such notice be sent to him or it.
51. The accidental omission to give notice of a meeting or (in cases where
instruments of proxy are sent out with the notice) the accidental
omission to send such instrument of proxy to, or the non-receipt of
notice of a meeting or such instrument of proxy by, any person entitled
to receive such notice shall not invalidate the proceedings at that
meeting.
52. A Shareholder present, either in person or by proxy, at any meeting of
the Company or of the holders of any class of shares in the Company shall
be deemed to have received notice of the meeting and, where requisite, of
the purposes for which it was called.
GENERAL MEETINGS AT MORE THAN ONE PLACE
53. (1) The provisions of this Bye-law shall apply if any general meeting
is convened at or adjourned to more than one place.
(2) The notice of any meeting or adjourned meeting may specify the
Specified Place and the Board shall make arrangements for
simultaneous attendance and participation at other places (whether
adjoining the Specified Place or in a different and separate place
or places altogether or otherwise) by Shareholders, provided that
persons attending at any particular place shall be able to see and
hear, and be seen and heard (whether by audio visual links or
otherwise howsoever enabling the same) by, persons attending at
the other places at which the meeting is convened.
(3) The Board may from time to time make such arrangements for the
purpose of controlling the level of attendance at any such place
(whether involving the issue of tickets or the imposition of some
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means of selection or otherwise) as they shall in their absolute
discretion consider appropriate, and may from time to time vary
any such arrangements or make new arrangements in place of them,
provided that a Shareholder who is not entitled to attend, in
person or by proxy, at any particular place shall be entitled so
to attend at one of the other places; and the entitlement of any
Shareholder so to attend the meeting or adjourned meeting at such
place shall be subject to any such arrangements as may be for the
time being in force and by the notice of meeting or adjourned
meeting stated to apply to the meeting.
(4) For the purposes of all other provisions of these Bye-laws any
such meeting shall be treated as being held at the Specified
Place.
(5) If a meeting is adjourned to more than one place, notice of the
adjourned meeting shall be given, in the manner required by
Bye-law 50.
PROCEEDINGS AT GENERAL MEETINGS
54. No business shall be transacted at any general meeting unless a quorum is
present when the meeting proceeds to business, but the absence of a
quorum shall not preclude the appointment, choice or election of a
chairman which shall not be treated as part of the business of the
meeting. Save as otherwise provided by these Bye-laws, at least two
Shareholders present in person or by proxy and entitled to vote
representing the holders of not less than one third in nominal value of
the issued shares shall be a quorum for all purposes.
55. If within five minutes (or such longer time as the chairman of the
meeting may determine to wait) after the time appointed for the meeting,
a quorum is not present, the meeting, if convened on the requisition of
Shareholders,
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shall be dissolved. In any other case, it shall stand adjourned to such
other day and such other time and place as the chairman of the meeting
may determine and at such adjourned meeting two Shareholders present in
person or by proxy and entitled to vote and representing the holders of
more than 331/3% of the issued shares shall be a quorum The Company shall
give not less than 14 days notice of any meeting adjourned through want
of a quorum and such notice shall state that the sole Shareholder or, if
more than one, two Shareholders present in person or by proxy and
entitled to vote and representing the holders of more than 33 1/3% of the
issued shares shall be a quorum. If at the adjourned meeting a quorum is
not present within fifteen minutes after the time appointed for holding
the meeting, the meeting shall be dissolved.
56. A meeting of the Shareholders or any class thereof may be held by means
of such telephone, electronic or other communication facilities as permit
all persons participating in the meeting to communicate with each other
simultaneously and instantaneously and participation in such a meeting
shall constitute presence in person at such meeting.
57. The Resident Representative, if any, upon giving the notice referred to
in Bye-law 50 above, shall be entitled to attend any general meeting of
the Company and each Director shall be entitled to attend and speak at
any general meeting of the Company.
58. The Chairman (if any) of the Board or, in his absence, the President
shall preside as chairman at every general meeting. If there is no such
Chairman or President, or if at any meeting neither the Chairman nor the
President is present within five minutes after the time appointed for
holding the meeting, or if neither of them is willing to act as chairman,
the Directors present shall choose one of their number to act or if one
Director only is present he shall
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preside as chairman if willing to act. If no Director is present, or if
each of the Directors present declines to take the chair, the persons
present and entitled to vote on a poll shall elect one of their number to
be chairman.
59. The chairman of the meeting may, with the consent of any meeting at which
a quorum is present (and shall if so directed by the meeting), adjourn
the meeting from time to time and from place to place but no business
shall be transacted at any adjourned meeting except business which might
lawfully have been transacted at the meeting from which the adjournment
took place. In addition, the chairman may adjourn the meeting to another
time and place without such consent if it appears to him that it is
likely to be impracticable to hold or continue that meeting because of
the number of members wishing to attend who are not present. When a
meeting is adjourned for three months or more or for an indefinite
period, at least 14 clear days' notice shall be given of the adjourned
meeting.
60. Save as expressly provided by these Bye-laws, it shall not be necessary
to give any notice of an adjournment or of the business to be transacted
at an adjourned meeting.
VOTING
61. Save where a greater majority is required by the Companies Acts or these
Bye-laws, any question proposed for consideration at any general meeting
shall be decided on by a simple majority of votes cast, and any
resolution put to a meeting shall be decided on a poll.
62. Subject to Bye-law 63, and to the restriction on voting arising by virtue
of Bye-law 135 and the determination by the Board of a record date for
voting,
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thereunder, and subject to any rights or restrictions attached to any
class of shares, at any meeting of the Company, each Shareholder present
in person or by proxy shall be entitled on the poll to one vote for each
share held by him, PROVIDED that, subject to Bye-law 64, if and so long
as the Controlled Shares of any person would, upon giving effect to the
principle that holders of shares shall have one vote for each share so
held, confer upon that person, being a Corporate Shareholder, more than
nine point five percent (9.5%) or more of the votes that may be cast by
all holders of shares of the Company or would confer upon that person,
being an Individual Shareholder, more than five percent (5%) or more of
the votes that may be cast by all holders of shares of the Company (any
such Corporate Shareholder or Individual Shareholder being referred to as
an "Over-the-Threshold Common Shareholder"), the voting rights with
respect to the Controlled shares owned by such Shareholder shall be
limited, in the aggregate to 9.5% in the case of a Corporate Shares and
to 5% in the case of an Individual Shareholder by reallocation of the
excess votes as described below.
In the case of a Corporate Shareholder all votes in excess of 9.5% of the
aggregate number of votes conferred by all issued common shares and in
the case of an Individual Shareholder, all of the votes in excess of 5%
of the aggregate number of votes conferred by all issue of common shares
shall be reallocated equally among the Common Shares that are not
included in such Controlled Shares and that are not held by other
Over-the Threshold Common Shareholders in accordance with the following
formula (the "Reallocation Formula");
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R
----
T-C+
Where: "T" is the aggregate number of votes conferred by all issued
Common Shares, C+ is the aggregate number of Controlled Shares of all
Over-the-Threshold Common Shareholders and "R" is the aggregate number of
Reallocable Votes that could be cast by all Over-the-Threshold Common
Shareholders (including persons who become Over-the-Threshold Common
Shareholders as a result of the application of the Reallocation Formula).
If the Application of the Reallocation Formula causes any person to
become an Over-the-Threshold Common Shareholder, all the votes of such
person in excess of 9.5% of the aggregate number of votes conferred by
all issued common shares in the case of a Corporate Shareholder and all
votes of such person in excess of 5% of the aggregate number of votes
conferred by all issued common shares in the case of an Individual
Shareholder shall be reallocated using the Reallocation Formula and the
Reallocation Formula shall continue to be applied until there are no
Over-the-Threshold Common Shareholders.
"CONTROLLED SHARES" in reference to any person (other than a person
referred to in Bye-law 64) means;
(i) all shares directly, indirectly or constructively owned by
such person within the meaning of section 958 of the Code
(the "Code Formula"); and
(ii) all 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").
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For the purposes of the application of the 13(d) Formula, "person" means
any 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.
"CORPORATE SHAREHOLDER" means any person as defined above other than an
individual natural person.
"INDIVIDUAL SHAREHOLDER" means any person as defined above other than a
Corporate Shareholder
The Board shall have the power and authority to make all determinations
that may be required to effectuate the provisions of this Bye-law,
including any required determination of the number of shares that may be
deemed to be held by any person, and such determination shall be
conclusive. All Shareholders 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 in order to make such determination.
63. Subject to Bye-law 64 no beneficial owner may exercise more than 20% of
the aggregate number of votes conferred by all issued common shares of
the Company For the purposes of this Bye-law a person will be considered
to be a "beneficial owner" if the Controlled Shares of such a person
would, upon giving effect to the principle that holders of shares shall
have one vote for each share held, confer upon such person 20% or more of
the votes that may be cast by all holders of shares of the Company.
64. Notwithstanding the provisions of Bye-law 62 any person who was a
shareholder of the Company prior to the Offerings (whether such shares
were acquired by such person prior to or following the Offerings)
including
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(without limitation) WPSII, Inc. and any other persons as may be
designated from time to time by the Board shall have one vote for each
share held by him. The provisions of Bye-law 63 shall not apply to any
shares held by Exempted Shareholders.
65. If the Company creates, pursuant to these Bye-laws or otherwise, any new
class or series of shares, the Company shall take such action in
determining the voting rights of the holders of such class or series as
may be required to assure that the Company is not characterized as a
Controlled Foreign Corporation for the purposes of the Code, in each case
applying any resulting restrictions on voting rights equitably to all
Shareholders (regardless of whether a Shareholder is a U.S. Shareholder
for the purposes of the Code), subject to the rights of WPSII, Inc. and
those other persons referred to in the first sentence of Bye-law 64.
66. The result of the poll shall be deemed to be the resolution of the
meeting at which the poll is demanded.
67. A poll demanded on any question shall be taken forthwith and in such
manner and place as the chairman shall direct and he may appoint
scrutineers (who need not be Shareholders) and fix a time and place for
declaring the result of the poll. It shall not be necessary (unless the
chairman otherwise directs) for notice to be given of a poll.
68. The demand for a poll shall not prevent the continuance of a meeting for
the transaction of any business other than the question on which the poll
has been demanded and it may be withdrawn at any time before the close of
the meeting or the taking of the poll, whichever is the earlier.
69. On a poll, votes may be cast either personally or by proxy.
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70. A person entitled to more than one vote on a poll need not use all his
votes or cast all the votes he uses in the same way.
71. In the case of an equality of votes at a general meeting, whether on a
show of hands or on a poll, the chairman of such meeting shall not be
entitled to a second or casting vote and the resolution shall fail.
72. In the case of joint holders of a share, the vote of the senior who
tenders a vote, whether in person or by proxy, shall be accepted to the
exclusion of the votes of the other joint holders, and for this purpose
seniority shall be determined by the order in which the names stand in
the Register in respect of the joint holding.
73. A Shareholder who is a patient for any purpose of any statute or
applicable law relating to mental health or in respect of whom an order
has been made by any Court having jurisdiction for the protection or
management of the affairs of persons incapable of managing their own
affairs may vote, whether on a show of hands or on a poll, by his
receiver, committee, curator bonis or other person in the nature of a
receiver, committee or curator bonis appointed by such Court and such
receiver, committee, curator bonis or other person may vote on a poll by
proxy, and may otherwise act and be treated as such Shareholder for the
purpose of general meetings.
74. No Shareholder shall, unless the Board otherwise determines, be entitled
to vote at any general meeting unless all calls or other sums presently
payable by him in respect of shares in the Company have been paid.
75. If;
(1) any objection shall be raised to the qualification of any voter;
or,
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(2) any votes have been counted which ought not to have been counted
or which might have been rejected; or,
(3) any votes are not counted which ought to have been counted,
the objection or error shall not vitiate the decision of the meeting or
adjourned meeting on any resolution unless the same is raised or pointed
out at the meeting or, as the case may be, the adjourned meeting at which
the vote objected to is given or tendered or at which the error occurs.
Any objection or error shall be referred to the chairman of the meeting
and shall only vitiate the decision of the meeting on any resolution if
the chairman decides that the same may have affected the decision of the
meeting. The decision of the chairman on such matters shall be final and
conclusive.
76. If an amendment shall be proposed to any resolution under consideration
but shall in good faith be ruled out of order by the chairman of the
meeting, the proceedings on the substantive resolution shall not be
invalidated by any error in such ruling. With the consent of the chairman
of the meeting, an amendment may be withdrawn by its proposer before it
is voted upon.
PROXIES AND CORPORATE REPRESENTATIVES
77. The instrument appointing a proxy shall be in writing under the hand of
the appointor or of his attorney authorised by him in writing or, if the
appointor is a corporation, either under its seal or under the hand of an
officer, attorney or other person authorised to sign the same.
78. Any Shareholder may appoint a standing proxy or (if a corporation)
representative by depositing at the Registered Office, or at such place
or places as the Board may otherwise specify for the purpose, a proxy or
(if a corporation) an authorisation and such proxy or authorisation shall
be valid for all general meetings and adjournments thereof or,
resolutions in writing, as the case may be, until notice of revocation is
received at the Registered
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Office, or at such place or places as the Board may otherwise specify for
the purpose. Where a standing proxy or authorisation exists, its
operation shall be deemed to have been suspended at any general meeting
or adjournment thereof at which the Shareholder is present or in respect
to which the Shareholder has specially appointed a proxy or
representative. The Board may from time to time require such evidence as
it shall deem necessary as to the due execution and continuing validity
of any such standing proxy or authorisation and the operation of any such
standing proxy or authorisation shall be deemed to be suspended until
such time as the Board determines that it has received the requested
evidence or other evidence satisfactory to it. A person so authorised as
a representative of a corporation shall be entitled to exercise the same
power on behalf of the grantor of the authority as the grantor could
exercise if it were an individual Shareholder of the Company and the
grantor shall for the purposes of these Bye-laws be deemed to be present
in person at any such meeting if a person so authorised is present at it.
79. Subject to Bye-law 78, the instrument appointing a proxy together with
such other evidence as to its due execution as the Board may from time to
time require, shall be delivered at the Registered Office (or at such
place or places as may be specified in the notice convening the meeting
or in any notice of any adjournment or, in either case or the case of a
written resolution, in any document sent therewith) not less than 12
hours or such other period as the Board may determine, prior to the
holding of the relevant meeting or adjourned meeting at which the person
named in the instrument proposes to vote or, in the case of a poll taken
subsequently to the date of a meeting or adjourned meeting, before the
time appointed for the taking of the poll, or, in the case of a written
resolution, prior to the effective date of the written resolution and in
default the instrument of proxy shall not be treated as valid.
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80. Instruments of proxy shall be in any common form or in such other form as
the Board may approve and the Board may, if it thinks fit, send out with
the notice of any meeting or any written resolution forms of instruments
of proxy for use at that meeting or in connection with that written
resolution. The instrument of proxy shall be deemed to confer authority
to demand or join in demanding a poll and to vote on any amendment of a
written resolution or amendment of a resolution put to the meeting for
which it is given as the proxy thinks fit. The instrument of proxy shall
unless the contrary is stated therein be valid as well for any
adjournment of the meeting as for the meeting to which it relates.
81. A vote given in accordance with the terms of an instrument of proxy shall
be valid notwithstanding the previous death or unsoundness of mind of the
principal, or revocation of the instrument of proxy or of the authority
under which it was executed, provided that no intimation in writing of
such death, insanity or revocation shall have been received by the
Company at the Registered Office (or such other place as may be specified
for the delivery of instruments of proxy in the notice convening the
meeting or other documents sent therewith) one hour at least before the
commencement of the meeting or adjourned meeting, or the taking of the
poll, or the day before the effective date of any written resolution at
which the instrument of proxy is used.
82. Subject to the Companies Acts, the Board may at its discretion waive any
of the provisions of these Bye-laws related to proxies or authorisations
and, in particular, may accept such verbal or other assurances as it
thinks fit as to the right of any person to attend and vote on behalf of
any Shareholder at general meetings or to sign written resolutions.
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APPOINTMENT AND REMOVAL OF DIRECTORS
83. At the first Annual General Meeting and at every subsequent Annual
General Meeting all the Directors shall retire from office.
84. If the Company, at the meeting at which a Director retires , does not
fill the vacancy, the retiring Director shall, if willing to act, be
deemed to have been reappointed unless at the meeting it is resolved not
to fill the vacancy or unless a resolution for the reappointment of the
Director is put to the meeting and lost.
85. No person other than a Director retiring shall be appointed a Director at
any general meeting unless:-
(a) he is recommended by the Board; or
(b) not less than six nor more than thirty-five clear days before the
date appointed for the meeting, notice executed by a Shareholder
qualified to vote at the meeting (not being the person to be
proposed) has been given to the Company of the intention to
propose that person for appointment setting forth as to each
person whom the Shareholders proposed to nominate for election or
re-election as a Director, (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or
employment of the person, (iii) the class, series and number of
shares of the Company which are beneficially owned by the person,
(iv) particulars which would, if he were so appointed, be required
to be included in the Company's register of Directors and
Officers, and (v) all other
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information relating to that person that is required to be
disclosed in solicitations for proxies for the election of
Directors pursuant to the Rules and Regulations of the Securities
and Exchange Commission under Section 14 of the Securities
Exchange Act of 1934 of the United States of America as amended
and the Rules and Regulations of the London Stock Exchange
together with notice executed by that person of his willingness to
serve as a Director if so elected.
86. Except as otherwise authorised by the Companies Acts, the appointment of
any person proposed as a Director shall be effected by a separate
resolution.
87. All Directors, upon election or appointment, except upon re-election at
an Annual General Meeting, must provide written acceptance of their
appointment, in such form as the Board may think fit, by notice in
writing to the Registered Office within thirty days of their appointment.
88. The Company shall at the Annual General Meeting and may by resolution
determine the minimum number of Directors, which shall be not less than
two and the maximum number of Directors and may by resolution determine
that one or more vacancies in the Board shall be deemed casual vacancies
for the purposes of these Bye-laws. Without prejudice to the power of the
Company by resolution in pursuance of any of the provisions of these
Bye-laws to appoint any person to be a Director, the Board, so long as a
quorum of Directors remains in office, shall have power at any time and
from time to time to appoint any individual to be a Director so as to
fill a casual vacancy. A Director so appointed shall hold office only
until the next following Annual General Meeting. If not reappointed at
such Annual General Meeting, he shall vacate office at the conclusion
thereof.
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89. The Company may in a Special General Meeting called for that purpose
remove a Director provided notice of any such meeting shall be served
upon the Director concerned not less than 14 days before the meeting and
he shall be entitled to be heard at that meeting. Any vacancy created by
the removal of a Director at a Special General Meeting may be filled at
the Meeting by the election of another Director in his place or, in the
absence of any such election, by the Board.
RESIGNATION AND DISQUALIFICATION OF DIRECTORS
90. The office of a Director shall be vacated upon the happening of any of
the following events:
(1) if he resigns his office by notice in writing delivered to the
Registered Office or tendered at a meeting of the Board;
(2) if he becomes of unsound mind or a patient for any purpose of any
statute or applicable law relating to mental health and the Board
resolves that his office is vacated;
(3) if he becomes bankrupt under the laws of any country or compounds
with his creditors;
(4) if he is prohibited by law from being a Director;
(5) if he ceases to be a Director by virtue of the Companies Acts or
these Bye-laws or is removed from office pursuant to these
Bye-laws;
(6) he shall for more than six consecutive months have been absent
without permission of the Board from meetings of the Board held
during that period and his Alternate Director (if any) shall not
during such period have attended in his stead and the Board
resolves that his office be vacated;
(7) he is requested to resign in writing by not less than three
quarters of the other Directors. In calculating the number of
Directors who are
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required to make such a request to the Director, there shall be
excluded any Alternate Director appointed by him acting in his
capacity as such; and (ii) a Director and any Alternate Director
appointed by him and acting in his capacity as such shall
constitute a single Director for this purpose, so that the
signature of either shall be sufficient.
ALTERNATE DIRECTORS
91. Any Director (other than an Alternate Director) may appoint any other
Director, or any other person approved by resolution of the Board and
willing to act, to be an Alternate Director and may remove from office an
Alternate Director so appointed by him. Any appointment or removal of an
Alternate Director by a Director shall be effected by depositing a notice
of appointment or removal with the Secretary at the Registered Office,
signed by such Director, and such appointment or removal shall become
effective on the date of receipt by the Secretary. Any Alternate Director
may also be removed by resolution of the Board. An Alternate Director may
also be a Director in his own right and may act as alternate to more than
one Director.
92. An Alternate Director shall cease to be an Alternate Director:-
(a) if his appointor ceases to be a Director; but, if a Director
retires but is reappointed or deemed to have been reappointed at
the meeting at which he retires, any appointment of an Alternate
Director made by him which was in force immediately prior to his
retirement shall continue after his reappointment;
(b) on the happening of any event which, if he were a Director, would
cause him to vacate his office as Director;
(c) if he is removed from office pursuant to Bye-laws 91; or
(d) if he resigns his office by notice to the Company.
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93. An Alternate Director shall be entitled to receive notices of all
meetings of Directors, to attend, be counted in the quorum and vote at
any such meeting at which any Director to whom he is alternate is not
personally present, and generally to perform all the functions of any
Director to whom he is alternate in his absence.
94. Every person acting as an Alternate Director shall (except as regards
powers to appoint an alternate and remuneration) be subject in all
respects to the provisions of these Bye-laws relating to Directors and
shall alone be responsible to the Company for his acts and defaults and
shall not be deemed to be the agent of or for any Director for whom he is
alternate. An Alternate Director may be paid expenses and shall be
entitled to be indemnified by the Company to the same extent mutatis
mutandis as if he were a Director. Every person acting as an Alternate
Director shall have one vote for each Director for whom he acts as
alternate (in addition to his own vote if he is also a Director). The
signature of an Alternate Director to any resolution in writing of the
Board or a committee of the Board shall, unless the terms of his
appointment provides to the contrary, be as effective as the signature of
the Director or Directors to whom he is alternate.
DIRECTORS' FEES AND ADDITIONAL REMUNERATION AND EXPENSES
95. The ordinary remuneration of the Directors who do not hold executive
office for their services (excluding amounts payable under any other
provision of these Bye-laws) shall be such amount as the Board may from
time to time by resolution determine. Subject thereto, each such Director
shall be paid a fee (which shall be deemed to accrue from day to day) at
such rate as may from time to time be determined by the Board. Each
Director may be paid
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his reasonable travel, hotel and incidental expenses in attending and
returning from meetings of the Board or committees constituted pursuant
to these Bye-laws or general meetings and shall be paid all expenses
properly and reasonably incurred by him in the conduct of the Company's
business or in the discharge of his duties as a Director. Any Director
who, by request, goes or resides abroad for any purposes of the Company
or who performs services which in the opinion of the Board go beyond the
ordinary duties of a Director may be paid such extra remuneration
(whether by way of salary, commission, participation in profits or
otherwise) as the Board may determine, and such extra remuneration shall
be in addition to any remuneration provided for by or pursuant to any
other Bye-law.
DIRECTORS' INTERESTS
96. (1) Save as otherwise provided by these Bye-laws, a Director shall not
vote at a meeting of the Board of a committee of the Board on any
resolution of the Board concerning a matter in which he has an interest
(other than by virtue of his interests in shares or debentures or other
securities of or otherwise in or through the Company) which is material
unless his interest arises only because the case falls within one or more
of the following paragraphs:-
(a) the resolution relates to the giving to him of a guarantee,
security or indemnity in respect of money lent by him to, or an
obligation incurred by him at the request of or for the benefit
of, the Company or any of its subsidiaries;
(b) the resolution relates to the giving to a third party of a
guarantee, security or indemnity in respect of any obligation of
the Company or any of its subsidiaries for which the Director has
assumed responsibility (in whole or part and whether alone or
jointly with others) under a guarantee or indemnity or by the
giving of security;
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(c) his interest arises in relation to the subscription or purchase by
him of shares, debentures or other securities of the company
pursuant to an offer or invitation to Shareholders or debenture
holders of the Company, or any class of them, or to the public or
any section of the public;
(d) his interest arises by virtue of his being, or intending to
become, a participant in the underwriting or sub-underwriting of
an offer of any shares, debentures or other securities of or by
the Company or any of its subsidiaries for subscription, purchase
or exchange;
(e) the resolution relates to a proposal concerning any other body
corporate in which he is interested, directly or indirectly, and
whether as an officer, shareholder, creditor or otherwise
howsoever, provided that he is not the holder of or beneficially
interested in one per cent or more of any class of the equity
share capital of such body corporate (or any other body corporate
through which his interest is derived) or of the voting rights
available to members of the relevant body corporate (any such
interest being deemed for the purpose of this Bye-law to be
material interest in all circumstances);
(f) the resolution relates in any way to a retirement benefits scheme
which has been approved, or is conditional upon approval, by the
authorities of any country for tax purposes;
(g) the resolution relates to any contract or arrangement for the
benefit of employees of the Company or of any of its subsidiaries
and does not provide in respect of any Director as such any
privilege or advantage not accorded to the employees to whom the
contract or arrangement relates; and
(h) any proposal concerning any insurance which the Company is
empowered to purchase or maintain for or for the benefit of any
Directors of the Company or for persons who include Directors of
the Company or for persons who include Directors of the Company
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provided that for the purposes of this paragraph insurance shall
mean only insurance against liability incurred by a Director in
respect of any such act or omission by him as is referred to in
Bye-law 100(2) or any other insurance which the Company is
empowered to purchase or maintain for or for the benefit of any
groups of persons consisting of or including Directors of the
Company.
For the purpose of determining whether a proposal concerns a body
corporate in which a Director is interested, there shall be disregarded
any shares held by a Director as bare or custodian trustee and in which
he has no beneficial interest, any shares comprised in a trust in which
the Director's interest is in reversion or remainder if and so long as
some other person is entitled to receive the income thereof, and any
shares comprised in an authorised unit trust in which the Director is
only interested as a unit holder. For the purposes of the Bye-law, an
interest of a person who is connected with a Director shall be treated as
an interest of the Director and, in relation to an Alternate Director, an
interest of his appointor shall be treated as an interest of the
Alternate Director without prejudice to any interest which the Alternate
Director has otherwise.
(2) A Director shall not be counted in the quorum present at a meeting
in relation to a resolution on which he is not entitled to vote.
(3) A Director may hold any other office or place of profit with the
Company (except that of auditor) in conjunction with his office of
Director for such period and upon such terms as the Board may
determine, and may be paid such extra remuneration therefor
(whether by way of salary, commission, participation in profits or
otherwise) as the Board may determine, and such extra remuneration
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shall be in addition to any remuneration provided for by or
pursuant to any other Bye-law.
(4) A Director may act by himself or his firm in a professional
capacity for the Company (otherwise than as auditor) and he or his
firm shall be entitled to remuneration for professional services
as if he were not a Director.
(5) Subject to the provisions of the Companies Acts, a Director may
notwithstanding his office be a party to, or otherwise interested
in, any transaction or arrangement with the Company or in which
the Company is otherwise interested; and be a director or other
officer of, or employed by, or a party to any transaction or
arrangement with, or otherwise interested in, any body corporate
promoted by the Company or in which the Company is interested. The
Board may also cause the voting power conferred by the shares in
any other company held or owned by the Company to be exercised in
such manner in all respects as it thinks fit, including the
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.
(6) So long as, where it is necessary, he declares the nature of his
interest at the first opportunity at a meeting of the Board or by
writing to the Directors as required by the Companies Acts, a
Director shall not by reason of his office be accountable ot the
Company for any benefit which he derives from any office or
employment to which these Bye-laws allow him to be appointed or
from any transaction or arrangement in which these Bye-laws allow
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him to be interested, and no such transaction or arrangement shall
be liable to be avoided on the ground of any interest or benefit.
(7) Subject to the Companies Acts and any further disclosure required
thereby, a general notice to the Directors by a Director or
Officer declaring that he is a director or officer or has an
interest in a person and is to be regarded as interested in any
transaction or arrangement made with that person, shall be
sufficient declaration of interest in relation to any transaction
or arrangement so made.
POWERS AND DUTIES OF THE BOARD
97. Subject to the provisions of the Companies Acts and these Bye-laws and to
any directions given by the Company by Resolution, the Board shall manage
the business of the Company and may pay all expenses incurred in
promoting and incorporating the Company and may exercise all the powers
of the Company. No alteration of these Bye-laws and no such direction
shall invalidate any prior act of the Board which would have been valid
if that alteration had not been made or that direction had not been
given. The powers given by this Bye-law shall not be limited by any
special power given to the Board by these Bye-laws and a meeting of the
Board at which a quorum is present shall be competent to exercise all the
powers, authorities and discretions for the time being vested in or
exercisable by the Board.
98. The Board may exercise all the powers of the Company to borrow money and
to mortgage or charge all or any part of the undertaking, property and
assets (present and future) and uncalled capital of the Company and to
issue debentures and other securities, whether outright or as collateral
security for any debt, liability or obligation of the Company or of any
other persons.
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99. All cheques, promissory notes, drafts, bills of exchange and other
instruments, whether negotiable or transferable or not, and all receipts
for money paid to the Company shall be signed, drawn, accepted, endorsed
or otherwise executed, as the case may be, in such manner as the Board
shall from time to time by resolution determine.
GRATUITIES, PENSIONS AND INSURANCE
100. (1) The Board may (by establishment of or maintenance of schemes or
otherwise) provide benefits, whether by the payment of gratuities
or pensions or by insurance or otherwise, for any past or present
Director or employee of the Company or any of its subsidiaries or
any body corporate associated with, or any business acquired by,
any of them, and for any member of his family (including a spouse
and a former spouse) or any person who is or was dependent on him,
and may (as well before as after he ceases to hold such office or
employment) contribute to any fund and pay premiums for the
purchase or provision of any such benefit.
(2) Without prejudice to the provisions of Bye-laws 146 and 147, the
Board shall have the power to purchase and maintain insurance for
or for the benefit of any persons who are or were at any time
Directors, Officers employees of the Company, or of any other
company which is its holding company or in which the Company or
such holding company has any interest whether direct or indirect
or which is in any way allied to or associated with the Company,
or of any subsidiary undertaking of the Company or any such other
company, or who are or were at any time trustees of any pension
fund in which employees of the Company or any such other company
or subsidiary undertaking are interested, including (without
prejudice to the generality of the foregoing) insurance against
any
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liability incurred by such persons in respect of any act or
omission in the actual or purported execution or discharge of
their duties or in the exercise or purported exercise of their
powers or otherwise in relation to their duties, powers or offices
in relation to the Company or any such other company, subsidiary
undertaking or pension fund.
(3) No Director or former Director shall be accountable to the Company
or the Shareholders for any benefit provided pursuant to this
Bye-law and the receipt of any such benefit shall not disqualify
any person from being or becoming a Director of the Company.
DELEGATION OF THE BOARD'S POWERS
101. The Board may by power of attorney appoint any company, firm or person or
any fluctuating body of persons, whether nominated directly or indirectly
by the Board, to be the attorney or attorneys of the Company for such
purposes and with such powers, authorities and discretions (not exceeding
those vested in or exercisable by the Board under these Bye-laws) and for
such period and subject to such conditions as it may think fit, and any
such power of attorney may contain such provisions for the protection and
convenience of persons dealing with any such attorney and of such
attorney as the Board may think fit, and may also authorise any such
attorney to sub-delegate all or any of the powers, authorities and
discretions vested in him.
102. The Board may entrust to and confer upon any Director, Officer or,
without prejudice to the provisions of Bye-law 103, other individual any
of the powers exercisable by it upon such terms and conditions with such
restrictions as it thinks fit, and either collaterally with, or to the
exclusion of, its own powers, and may from time to time revoke or vary
all or any of such powers but no person dealing in good faith and without
notice of such revocation or variation shall be affected thereby.
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103. The Board may delegate any of its powers, authorities and discretions to
committees, consisting of such person or persons (whether a member or
members of its body or not) as it thinks fit. Any committee so formed
shall, in the exercise of the powers, authorities and discretions so
delegated, and in conducting its proceedings conform to any regulations
which may be imposed upon it by the Board. If no regulations are imposed
by the Board the proceedings of a committee with two or more members
shall be, as far as is practicable, governed by the Bye-laws regulating
the proceedings of the Board.
PROCEEDINGS OF THE BOARD
104. The Board may meet for the despatch of business, adjourn and otherwise
regulate its meetings as it thinks fit. Questions arising at any meeting
shall be determined by a majority of votes. In the case of an equality of
votes the motion shall be deemed to have been lost. A Director may, and
the Secretary on the requisition of a Director shall, at any time summon
a meeting of the Board.
105. Notice of a meeting of the Board shall be deemed to be duly given to a
Director if it is given to him personally or by word of mouth or sent to
him by post, cable, telex, telecopier or other mode of representing or
reproducing words in a legible and non-transitory form at his last known
address or any other address given by him to the Company for this
purpose. A Director may retrospectively waive the requirement for notice
of any meeting by consenting in writing to the business conducted at the
meeting.
106. The quorum necessary for the transaction of the business of the Board may
be fixed by the Board and, unless so fixed at any other number, shall be
a
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majority of the members of the Board individuals. Any Director who ceases
to be a Director at a meeting of the Board may continue to be present and
to act as a Director and be counted in the quorum until the termination
of the meeting if no other Director objects and if otherwise a quorum of
Directors would not be present.
107. The Resident Representative shall, upon delivering written notice of an
address for the purposes of receipt of notice, to the Registered Office,
be entitled to receive notice of, attend and be heard at and to receive
minutes of all meetings of the Board.
108. So long as a quorum of Directors remains in office, the continuing
Directors may act notwithstanding any vacancy in the Board but, if no
such quorum remains, the continuing Directors or a sole continuing
Director may act only for the purpose of calling a general meeting.
109. The Chairman (or President) or, in his absence, the Deputy Chairman (or
Vice-President), shall preside as chairman at every meeting of the Board.
If at any meeting the Chairman or Deputy Chairman (or the President or
Vice-President) is not present within five minutes after the time
appointed for holding the meeting, or is not willing to act as chairman,
the Directors present may choose one of their number to be chairman of
the meeting.
110. The meetings and proceedings of any committee consisting of two or more
members shall be governed by the provisions contained in these Bye-laws
for regulating the meetings and proceedings of the Board so far as the
same are applicable and are not superseded by any regulations imposed by
the Board.
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111. A resolution in writing signed by all the Directors for the time being
entitled to receive notice of a meeting of the Board or by all the
members of a committee for the time being shall be as valid and effectual
as a resolution passed at a meeting of the Board or, as the case may be,
of such committee duly called and constituted. Such resolution may be
contained in one document or in several documents in the like form each
signed by one or more of the Directors or members of the committee
concerned.
112. A meeting of the Board or a committee appointed by the Board may be held
by means of such telephone, electronic or other communication facilities
as permit all persons participating in the meeting to communicate with
each other simultaneously and instantaneously and participation in such a
meeting shall constitute presence in person at such meeting. Such a
meeting shall be deemed to take place where the largest group of those
participating in the meeting is physically assembled, or, if there is no
such group, where the chairman of the meeting then is.
113. All acts done by the Board or by any committee or by any person acting as
a Director or member of a committee or any person duly authorised by the
Board or any committee, shall, notwithstanding that it is afterwards
discovered that there was some defect in the appointment of any member of
the Board or such committee or person acting as aforesaid or that they or
any of them were disqualified or had vacated their office, be as valid as
if every such person had been duly appointed and was qualified and had
continued to be a Director, member of such committee or person so
authorised.
114. The Company may by resolution suspend or relax to any extent, either
generally or in respect of any particular matter, any provision of these
Bye-laws prohibiting a Director from voting at a meeting of the Board or
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of a committee of the Board, or ratify any transaction not duly
authorised by reason of a contravention of any such provisions.
115. Where proposals are under consideration concerning the appointment
(including fixing or varying the terms of appointment) of two or more
Directors to offices or employments with the Company or any body
corporate in which the Company is interested, the proposals may be
divided and considered in relation to each Director separately and in
such cases each of the Directors concerned (if not debarred from voting
or being counted in the quorum under the provisions of paragraph (5) of
Bye-law 96) shall be entitled to vote and be counted in the quorum in
respect of each resolution except that concerning his own appointment.
116. If a question arises at a meeting of the Board or a committee of the
Board as to the entitlement of a Director to vote or be counted in a
quorum, the question may, before the conclusion of the meeting, be
referred to the chairman of the meeting and his ruling in relation to any
Director other than himself shall be final and conclusive except in a
case where the nature or extent of the interests of the Director
concerned have not been fairly disclosed. If any such question arises in
respect of the chairman of the meeting, it shall be decided by resolution
of the Board (on which the chairman shall not vote) and such resolution
will be final and conclusive except in a case where the interests of the
chairman have not been fairly disclosed.
OFFICERS
117. The Officers of the Company shall include a President and a
Vice-President or a Chairman and a Deputy Chairman who shall be Directors
and shall be elected by the Board, subject to Bye-law 115, as soon as
possible after the statutory meeting and each Annual General Meeting. In
addition, the Board may appoint any person whether or not he is a
Director to hold such office
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as the Board may from time to time determine. Any person elected or
appointed pursuant to this Bye-law shall hold office for such period and
upon such terms as the Board may determine and the Board may revoke or
terminate any such election or appointment. Any such revocation or
termination shall be without prejudice to any claim for damages that such
Officer may have against the Company or the Company may have against such
Officer for any breach of any contract of service between him and the
Company which may be involved in such revocation or termination. Save as
provided in the Companies Acts or these Bye-laws, the powers and duties
of the Officers of the Company shall be such (if any) as are determined
from time to time by the Board.
EXECUTIVE DIRECTORS
118. Subject to the provisions of the Companies Acts and to Bye-law 115, the
Board may appoint one or more of its body to be the holder of any
executive office (except that of auditor) under the Company and may enter
into any agreement or arrangement with any Director for his employment by
the Company or for the provision by him of any services outside the scope
of the ordinary duties of a Director. Any such appointment, agreement or
arrangement may be made upon such terms, including terms as to
remuneration, as the Board determines, and any remuneration which is so
determined may be in addition to or in lieu of any ordinary remuneration
as a Director. The Board may revoke or vary any such appointment but
without prejudice to any rights or claims which the person whose
appointment is revoked or varied may have against the Company by reason
thereof.
119 Any appointment of a Director to an executive office shall not terminate
solely because he ceases to be a Director, unless expressly provided for
in
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any contract entered into to effect his appointment to such execution
office. A Director appointed to an executive office shall not ipso facto
cease to be a Director if his appointment to such executive office
terminates.
120. The emoluments of any Director holding executive office for his services
as such shall be determined by the Board, and may be of any description,
and (without limiting the generality of the foregoing) may include
admission to or continuance of membership of any scheme (including any
share acquisition scheme) or fund instituted or established or financed
or contributed to by the Company for the provision of pensions, life
assurance or other benefits for employees or their dependants, or the
payment of a pension or other benefits to him or his dependants on or
after retirement or death, apart from membership or any such scheme or
fund.
MINUTES
121. The Board shall cause minutes to be made and books kept for the purpose
of recording -
(1) all appointments of Officers made by the Board;
(2) the names of the Directors and other persons (if any) present at
each meeting of the Board and of any committee;
(3) of all proceedings at meetings of the Company, of the holders of
any class of shares in the Company, of the Board and of committees
appointed by the Board or the Shareholders;
(4) of all proceedings of its managers (if any).
Shareholders shall only be entitled to see the Register of Directors and
Officers, the Register, the financial information provided for in Bye-law
139 and the minutes of meetings of the Shareholders of the Company.
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SECRETARY AND RESIDENT REPRESENTATIVE
122. The Secretary (including one or more deputy or assistant secretaries)
and, if required, the Resident Representative, shall be appointed by the
Board at such remuneration (if any) and upon such terms as it may think
fit and any Secretary and Resident Representative so appointed may be
removed by the Board. The duties of the Secretary and the duties of the
Resident Representative shall be those prescribed by the Companies Acts
together with such other duties as shall from time to time be prescribed
by the Board.
123. A provision of the Companies Acts or these Bye-laws requiring or
authorising a thing to be done by or to a Director and the Secretary
shall not be satisfied by its being done by or to the same person acting
both as Director and as, or in the place of, the Secretary.
THE SEAL
124. (1) The Seal shall consist of a circular metal device with the name of
the Company around the outer margin thereof and the country and
year of incorporation across the centre thereof. Should the Seal
not have been received at the Registered Office in such form at
the date of adoption of this Bye-law then, pending such receipt,
any document requiring to be sealed with the Seal shall be sealed
by affixing a red wafer seal to the document with the name of the
Company, and the country and year of incorporation type written
across the centre thereof.
(2) The Board shall provide for the custody of every Seal. A Seal
shall only be used by authority of the Board or of a committee
constituted by the Board. Subject to these Bye-laws, any
instrument to which a Seal is affixed shall be signed by either
two Directors, or by the
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Secretary and one Director, or by the Secretary or by any one
person whether or not a Director or Officer, who has been
authorised either generally or specifically to affirm the use of a
Seal; provided that the Secretary or a Director may affix a Seal
over his signature alone to authenticate copies of these Bye-laws,
the minutes of any meeting or any other documents requiring
authentication.
DIVIDENDS AND OTHER PAYMENTS
125. The Board may from time to time declare dividends or distributions out of
contributed surplus to be paid to the Shareholders according to their
rights and interests including such interim dividends as appear to the
Board to be justified by the position of the Company. The Board, in its
discretion, may determine that any dividend shall be paid in cash or
shall be satisfied, subject to Bye-law 133, in paying up in full shares
in the Company to be issued to the Shareholders credited as fully paid or
partly paid or partly in one way and partly the other. The Board may also
pay any fixed cash dividend which is payable on any shares of the Company
half yearly or on such other dates, whenever the position of the Company,
in the opinion of the Board, justifies such payment.
126. Except insofar as the rights attaching to, or the terms of issue of, any
share otherwise provide:-
(1) all dividends or distributions out of contributed surplus may be
declared and paid according to the amounts paid up on the shares
in respect of which the dividend or distribution is paid, and an
amount paid up on a share in advance of calls may be treated for
the purpose of this Bye-law as paid-up on the share;
(2) dividends or distributions out of contributed surplus may be
apportioned and paid pro rata according to the amounts paid-up on
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the shares during any portion or portions of the period in respect
of which the dividend or distribution is paid.
127. The Board may deduct from any dividend, distribution or other moneys
payable to a Shareholder by the Company on or in respect of any shares
all sums of money (if any) presently payable by him to the Company on
account of calls or otherwise in respect of shares of the Company.
128. No dividend, distribution or other moneys payable by the Company on or in
respect of any share shall bear interest against the Company.
129. Any dividend, distribution or interest, or part thereof payable in cash,
or any other sum payable in cash to the holder of shares may be paid by
cheque or warrant sent through the post addressed to the holder at his
address in the Register or, in the case of joint holders, addressed to
the holder whose name stands first in the Register in respect of the
shares at his registered address as appearing in the Register or
addressed to such person at such address as the holder or joint holders
may in writing direct. Every such cheque or warrant shall, unless the
holder or joint holders otherwise direct, be made payable to the order of
the holder or, in the case of joint holders, to the order of the holder
whose name stands first in the Register in respect of such shares, and
shall be sent at his or their risk and payment of the cheque or warrant
by the bank on which it is drawn shall constitute a good discharge to the
Company. Any one of two or more joint holders may give effectual receipts
for any dividends, distributions or other moneys payable or property
distributable in respect of the shares held by such joint holders.
130. Any dividend or distribution out of contributed surplus unclaimed for a
period of six years from the date of declaration of such dividend or
distribution shall be forfeited and shall revert to the Company and the
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payment by the Board of any unclaimed dividend, distribution, interest or
other sum payable on or in respect of the share into a separate account
shall not constitute the Company a trustee in respect thereof.
131. The Board may also, in addition to its other powers, direct payment or
satisfaction of any dividend or distribution out of contributed surplus
wholly or in part by the distribution of specific assets, and in
particular of paid-up shares or debentures of any other company, and
where any difficulty arises in regard to such distribution or dividend
the Board may settle it as it thinks expedient, and in particular, may
authorise any person to sell and transfer any fractions or may ignore
fractions altogether, and may fix the value for distribution or dividend
purposes of any such specific assets and may determine that cash payments
shall be made to any Shareholders upon the footing of the values so fixed
in order to secure equality of distribution and may vest any such
specific assets in trustees as may seem expedient to the Board provided
that such dividend or distribution may not be satisfied by the
distribution of any partly paid shares or debentures of any company
without the sanction of a Resolution.
RESERVES
132. The Board may, before recommending or declaring any dividend or
distribution out of contributed surplus, set aside such sums as it thinks
proper as reserves which shall, at the discretion of the Board, be
applicable for any purpose of the Company and pending such application
may, also at such discretion, either be employed in the business of the
Company or be invested in such investments as the Board may from time to
time think fit. The Board may also without placing the same to reserve
carry forward any sums which it may think it prudent not to distribute.
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CAPITALIZATION OF PROFITS
133. The Board may, from time to time resolve to capitalise all or any part of
any amount for the time being standing to the credit of any reserve or
fund which is available for distribution or to the credit of any share
premium account and accordingly that such amount be set free for
distribution amongst the Shareholders or any class of Shareholders who
would be entitled thereto if distributed by way of dividend and in the
same proportions, on the footing that the same be not paid in cash but be
applied either in or towards paying up amounts for the time being unpaid
on any shares in the Company held by such Shareholders respectively or in
payment up in full of unissued shares, debentures or other obligations of
the Company, to be allotted and distributed credited as fully paid
amongst such Shareholders, or partly in one way and partly in the other,
provided that for the purpose of this Bye-law, a share premium account
may be applied only in paying up of unissued shares to be issued to such
Shareholders credited as fully paid and provided further that any sum
standing to the credit of a share premium account may only be applied in
crediting as fully paid shares of the same class as that from which the
relevant share premium was derived.
134. Where any difficulty arises in regard to any distribution under the last
preceding Bye-law, the Board may settle the same as it thinks expedient
and, in particular, may authorise any person to sell and transfer any
fractions or may resolve that the distribution should be as nearly as may
be practicable in the correct proportion but not exactly so or may ignore
fractions altogether, and may determine that cash payments should be made
to any Shareholders in order to adjust the rights of all parties, as may
seem expedient to the Board. The Board may appoint any person to sign on
behalf of the persons entitled to participate in the distribution any
contract necessary or desirable
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for giving effect thereto and such appointment shall be effective and
binding upon the Shareholders.
RECORD DATES
135. Notwithstanding any other provisions of these Bye-laws, the Company may
by resolution of the Board fix any date as the record date for any
dividend, distribution, allotment or issue and for the purpose of
identifying the persons entitled to receive notices of general meetings
and to vote at general meetings. Any such record date may be on or at any
time not more than 60 days before any date on which such dividend,
distribution, allotment or issue is declared, paid or made or note more
than 60 days nor less than 10 days before the date of any such meetings.
ACCOUNTING RECORDS
136. The Board shall cause to be kept accounting records sufficient to give a
true and fair view of the state of the Company's affairs and to show and
explain its transactions, in accordance with the Companies Acts.
137. The records of account shall be kept at the Registered Office or at such
other place or places as the Board thinks fit, and shall at all times be
open to inspection by the Directors: PROVIDED that if the records of
account are kept at some place outside Bermuda, there shall be kept at an
office of the Company in Bermuda such records as will enable the
Directors to ascertain with reasonable accuracy the financial position of
the Company at the end of each three month period. No Shareholder (other
than an Officer of the Company) shall have any right to inspect any
accounting record or book or
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document of the Company except as conferred by law or authorised by the
Board or by Resolution.
138. A copy of every balance sheet and statement of income and expenditure,
including every document required by law to be annexed thereto, which is
to be laid before the Company in general meeting, together with a copy of
the auditors' report, shall be sent to each person entitled thereto in
accordance with the requirements of the Companies Acts.
AUDIT
139. Save and to the extent that an audit is waived in the manner permitted by
the Companies Acts, auditors shall be appointed and their duties
regulated in accordance with the Companies Acts, any other applicable law
and such requirements not inconsistent with the Companies Acts as the
Board may from time to time determine.
SERVICE OF NOTICES AND OTHER DOCUMENTS
140. Any notice or other document (including a share certificate) may be
served on or delivered to any Shareholder by the Company either
personally or by sending it through the post (by airmail where
applicable) in a pre-paid letter addressed to such Shareholder at his
address as appearing in the Register or by delivering it to or leaving it
at such registered address. In the case of joint holders of a share,
service or delivery of any notice or other document on or to one of the
joint holders shall for all purposes be deemed as sufficient service on
or delivery to all the joint holders. Any notice or other document if
sent by post shall be deemed to have been served or delivered seven days
after it was put in the post, and in proving such service or
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delivery, it shall be sufficient to prove that the notice or document was
properly addressed, stamped and put in the post.
141. Any notice of a general meeting of the Company shall be deemed to be duly
given to a Shareholder, or other person entitled to it, if it is sent to
him by cable, telex, telecopier or other mode of representing or
reproducing words in a legible and non-transitory form at his address as
appearing in the Register or any other address given by him to the
Company for this purpose. Any such notice shall be deemed to have been
served twenty-four hours after its despatch.
142. Any notice or other document delivered, sent or given to a Shareholder in
any manner permitted by these Bye-laws shall, notwithstanding that such
Shareholder is then dead or bankrupt or that any other event has
occurred, and whether or not the Company has notice of the death or
bankruptcy or other event, be deemed to have been duly served or
delivered in respect of any share registered in the name of such
Shareholder as sole or joint holder unless his name shall, at the time of
the service or delivery of the notice or document, have been removed from
the Register as the holder of the share, and such service or delivery
shall for all purposes be deemed as sufficient service or delivery of
such notice or document on all persons interested (whether jointly with
or as claiming through or under him) in the share.
DESTRUCTION OF DOCUMENTS
143. The Company shall be entitled to destroy all instruments of transfer of
shares which have been registered, and all other documents on the basis
of which any entry is made in the register, at any time after the
expiration of six years from the date of registration thereof and all
dividends mandates or variations or cancellations thereof and
notifications of change of address at
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any time after the expiration of two years from the date of recording
thereof and all share certificates which have been cancelled at any time
after the expiration of one year from the date of cancellation thereof
and all paid dividend warrants and cheques at any time after the
expiration of one year from the date of actual payment thereof and all
instruments of proxy which have been used for the purpose of a poll at
any time after the expiration of one year from the date of such use and
all instruments of proxy which have not been used for the purpose of a
poll at any time after one month from the end of the meeting to which the
instrument of proxy relates and at which no poll was demanded. It shall
conclusively be presumed in favour of the Company that every entry in the
register purporting to have been made on the basis of an instrument of
transfer or other document so destroyed was duly and properly made, that
every instrument of transfer so destroyed was a valid and effective
instrument duly and properly registered, that every share certificate so
destroyed was a valid and effective certificate duly and properly
cancelled and that every other document hereinbefore mentioned so
destroyed was a valid and effective document in accordance with the
recorded particulars thereof in the books or records of the Company,
provided always that:-
(a) the provisions aforesaid shall apply only to the destruction of a
document in good faith and without notice of any claim (regardless
of the parties thereto) to which the document might be relevant;
(b) nothing herein contained shall be construed as imposing upon the
Company any liability in respect of the destruction of any such
document earlier than as aforesaid or in any other circumstances
which would not attach to the Company in the absence of this
Bye-law; and
(c) references herein to the destruction of any document include
references to the disposal thereof in any manner.
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UNTRACED SHAREHOLDERS
144. (1) The Company shall be entitled to sell, at the best price
reasonably obtainable, the shares of a Shareholder or the shares
to which a person is entitled by virtue of transmission on death,
bankruptcy, or otherwise by operation of law if and provided
that:-
(a) during the period of twelve years prior to the date of the
publication of the advertisements referred to in paragraph
(b) below (or, if published on different dates, the first
thereof) at least eight dividends in respect of the shares
in question have been declared and all dividend warrants
and cheques which have been sent in the manner authorised
by these Bye-laws in respect of the shares in question have
remained uncashed; and
(b) the Company shall as soon as practicable after expiry of
the said period of twelve years have inserted
advertisements both in a Bermuda daily newspaper and in a
newspaper circulating in the area of the last known address
of such Shareholder or other person giving notice of its
intention to sell the shares; and
(c) during the said period of twelve years and the period of
three months following the publication of the said
advertisements the Company shall have received no
indication either of the whereabouts or of the existence of
such Shareholder or person; and
(d) if the shares are listed on The New York Stock Exchange and
on The London Stock Exchange, notice shall have been given
to The New York Stock Exchange and on The Quotations
Department of The London Stock Exchange of
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the Company's intention to make such sale prior to the
publication of advertisements.
If during any twelve year period referred to in paragraph (a)
above, further shares have been issued in right of those held at
the beginning of such period or of any previously issued during
such period and all the other requirements of this Bye-law (other
than the requirement that they be in issue for twelve years) have
been satisfied in regard to the further shares, the Company may
also sell the further shares.
(2) To give effect to any such sale, the Board may authorise some
person to execute an instrument of transfer of the shares sold to,
or in accordance with the directions of, the purchaser and an
instrument of transfer executed by that person shall be as
effective as if it had been executed by the holder of, or person
entitled by transmission to, the shares. The transferee shall not
be bound to see to the application of the purchase money, nor
shall his title to the shares be affected by any irregularity in,
or invalidity of, the proceedings in reference to the sale.
(3) The net proceeds of sale shall belong to the Company which shall
be obliged to account to the former Shareholder or other person
previously entitled as aforesaid for an amount equal to such
proceeds and shall enter the name of such former Shareholder or
other person in the books of the Company as a creditor for such
amount. No trust shall be created in respect of the debt, no
interest shall be payable in respect of the same and the Company
shall not be required to account for any money earned on the net
proceeds, which may be employed in the business of the Company or
invested in such investments as the Board from time to time thinks
fit.
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WINDING UP
145. If the Company shall be wound up, the liquidator may, with the sanction
of a Resolution of the Company and any other sanction required by the
Companies Acts, divide amongst the Shareholders in specie or kind the
whole or any part of the assets of the Company (whether they shall
consist of property of the same kind or not) and may for such purposes
set such values as he deems fair upon any property to be divided as
aforesaid and may determine how such division shall be carried out as
between the Shareholders or different classes of Shareholders. The
liquidator may, with the like sanction, vest the whole or any part of
such assets in trustees upon such trust for the benefit of the
contributories as the liquidator, with the like sanction, shall think
fit, but so that no Shareholder shall be compelled to accept any shares
or other assets upon which there is any liability.
INDEMNITY
146. Subject to the proviso below, every Director, Officer of the Company and
member of a committee constituted under Bye-law 103 and any Resident
Representative shall be indemnified out of the funds of the Company
against all liabilities, loss, damage or expense (including but not
limited to liabilities under contract, tort and statute or any applicable
foreign law or regulation and all reasonable legal and other costs and
expenses properly payable) incurred or suffered by him as such Director,
Officer, committee member or Resident Representative and the indemnity
contained in this Bye-law shall extend to any person acting as a
Director, Officer, committee member or Resident Representative in the
reasonable belief that he has been so appointed or elected
notwithstanding any defect in such appointment or election PROVIDED
ALWAYS that the indemnity contained in this Bye-
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law shall not extend to any matter which would render it void pursuant to
the Companies Acts.
147. Every Director, Officer, member of a committee duly constituted under
Bye-law 103 or Resident Representative of the Company shall be
indemnified out of the funds of the Company against all liabilities
incurred by him as such Director, Officer, committee member or Resident
Representative in defending any proceedings, whether civil or criminal,
in which judgement is given in his favour, or in which he is acquitted,
or in connection with any application under the Companies Acts in which
relief from liability is granted to him by the court.
148. To the extent that any Director, Officer, member of a committee duly
constituted under Bye-law 103 or Resident Representative is entitled to
claim an indemnity pursuant to these Bye-laws in respect of amounts paid
or discharged by him, the relative indemnity shall take effect as an
obligation of the Company to reimburse the person making such payment or
effecting such discharge.
149. Each Shareholder and the Company agree to waive any claim or right of
action he or it may at any time have, whether individually or by or in
the right of the Company, against any Director, Officer, or member of a
committee duly constituted under Bye-law 103 on account of any action
taken by such Director, Officer, or member of a committee or the failure
of such Director, Officer, or member of a committee to take any action in
the performance of his duties with or for the Company PROVIDED HOWEVER
that such waiver shall not apply to any claims or rights of action
arising out of the fraud of such Director, Officer, or member of a
committee duly constituted under Bye-law 103 or to recover any gain,
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personal profit or advantage to which such Director, Officer, or member
of a committee duly constituted under Bye-law 103 is not legally
entitled.
150. Subject to the Companies Acts, expenses incurred in defending any civil
or criminal action or proceeding for which indemnification is required
pursuant to Bye-laws 146 and 147 shall be paid by the Company in advance
of the final disposition of such action or proceeding upon receipt of an
undertaking by or on behalf of the indemnified party to repay such amount
if it shall ultimately be determined that the indemnified party is not
entitled to be indemnified pursuant to Bye-laws 146 and 147 provided that
no monies shall be paid hereunder unless payment of the same shall be
authorised in the specific case upon a determination that indemnification
of the Director or officer would be proper in the circumstances because
he has met the standard of conduct which would entitle him to the
indemnification thereby provided and such determination shall be made:
(a) by the Board, by a majority vote at a meeting duly constituted by
a quorum of Directors not party to the proceedings or matter with
regard to which the indemnification is, or would be, claimed; or
(b) in the case such a meeting cannot be constituted by lack of a
disinterested quorum, by independent legal counsel in a written
opinion; or
(c) by a majority vote of the Shareholders.
Each Shareholder of the Company, by virtue of its acquisition and
continued holding of a share, shall be deemed to have acknowledged and
agreed that the advances of funds may be made by the Company as
aforesaid, and when made by the Company under this Bye-law 150 are made
to meet expenditures incurred for the purpose of enabling such Director,
Officer, or
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member of a committee duly constituted under Bye-law 103 to properly
perform his or her duties as an officer of the Company.
AMALGAMATION
151. Any resolution proposed for consideration at any general meeting to
approve the amalgamation of the Company with any other company, wherever
incorporated, shall require the approval of a majority vote of the
majority of all issued shares of the Company and the quorum for such
meeting shall be two or more holders of shares present in person or by
proxy holding or representing the majority of all issued shares of the
Company and such resolution will be considered in a poll in accordance
with the provisions of Bye-laws 62 to 76.
CONTINUATION
152. Subject to the Companies Acts, the Shareholder may, by Resolution,
approve the discontinuation of the Company in Bermuda and the
continuation of the Company in a jurisdiction outside Bermuda. The
Shareholders, having resolved to approve the discontinuation of the
Company, may by resolution further resolve not to proceed with any
application to discontinue the Company in Bermuda or may vary such
application as they see fit.
ALTERATION OF BYE-LAWS
153. These Bye-laws may be amended, from time to time by resolution of the
Board, subject to approval by Resolution at a General Meeting of the
Shareholders.
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