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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN ISSUER PURSUANT TO RULES 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
FOR THE MONTH OF MAY, 1999
ROYAL CARIBBEAN CRUISES LTD.
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1050 CARIBBEAN WAY, MIAMI, FLORIDA 33132
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
[INDICATE BY CHECK MARK WHETHER THE REGISTRANT FILES OR WILL FILE
ANNUAL REPORTS UNDER COVER FORM 20-F OR FORM 40-F.]
FORM 20-F X FORM 40-F
----- -----
[INDICATE BY CHECK MARK WHETHER THE REGISTRANT BY FURNISHING THE
INFORMATION CONTAINED IN THIS FORM IS ALSO THEREBY FURNISHING THE INFORMATION TO
THE COMMISSION PURSUANT TO RULE 12g3-2(b) UNDER THE SECURITIES EXCHANGE ACT OF
1934.]
YES NO X
----- -----
[IF "YES" IS MARKED INDICATE BELOW THE FILE NUMBER ASSIGNED TO THE
REGISTRANT IN CONNECTION WITH RULE 12g-3-2(b): 82 _____].
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The following documents are being furnished by Royal Caribbean Cruises Ltd.
pursuant to this Report on Form 6-K:
Document No. 1 Articles of Amendment to the Articles of Incorporation
of Royal Caribbean Cruises Ltd. filed May 17, 1999
Document No. 2 Restated By-Laws of Royal Caribbean Cruises Ltd.
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INCORPORATION BY REFERENCE
This report on Form 6-K is hereby incorporated by reference in
registrant's Registration Statement on Form F-3, File No. 333-8708, filed with
the Securities and Exchange Commission.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ROYAL CARIBBEAN CRUISES LTD.
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(Registrant)
Date May 17, 1999 /s/ Richard J. Glasier
--------------------------
Richard J. Glasier
Executive Vice President
and Chief Financial Officer
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DOCUMENT NO. 1
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
ROYAL CARIBBEAN CRUISES LTD.
UNDER SECTION 9.5 OF THE
BUSINESS CORPORATION ACT
The undersigned, the duly authorized Executive Vice President and
Secretary of Royal Caribbean Cruises Ltd. (the "Corporation"), for the purpose
of amending the Articles of Incorporation, do hereby certify as follows:
1. The Articles of Incorporation of Royal Caribbean Cruises Ltd. (which
was formed under the name of Royal Caribbean Corp.) were filed with the Minister
of Foreign Affairs on July 23, 1985.
2. The first sentence of the second paragraph of ARTICLE SEVENTH (a) of
the Articles of Incorporation is hereby amended to read as follows:
"All directors shall have equal standing and have equal voting powers."
3. ARTICLE EIGHTH of the Articles of Incorporation of the Corporation
is hereby amended in its entirety to read as follows:
"EIGHTH AMENDMENTS TO ARTICLES OF INCORPORATION AND BY-LAWS
(a)
Subject to subsection (b), any amendment to these
Articles of Incorporation shall require authorization
at a meeting of shareholders by the affirmative vote
of the holders of not less than two-thirds of all
outstanding shares of the Corporation entitled to
vote thereon.
(b)
The provisions of subsection (a) of this ARTICLE
EIGHTH shall not apply to any amendment:
(i) to ARTICLE FOURTH to change the
Corporation's registered agent or
registered address; or
(ii) to ARTICLE FIFTH to change the authorized
number of shares of stock which the
Corporation shall have authority to issue;
or
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(iii) arising from the filing of a copy of a
resolution establishing and designating the
shares of any class or of any series of any
class pursuant to Section 5.1 of the
Business Corporation Act, or any succeeding
provision.
(c)
Subject to ARTICLE SEVENTH, the Board of Directors of
the Corporation shall have the power to adopt, amend
or repeal the By-Laws of the Corporation. The
shareholders may adopt, amend or repeal the By-Laws
of the Corporation only by the affirmative vote at a
meeting of shareholders by the holders of not less
than two-thirds of all outstanding shares of the
Corporation entitled to vote thereon."
4. These Articles of Amendment to the Articles of Incorporation of the
Corporation were authorized by vote of the shareholders at a meeting of
shareholders. The amendment to ARTICLE SEVENTH (a) was authorized by vote of the
holders of a majority of all outstanding shares entitled to vote thereon and the
amendment to ARTICLE EIGHTH was authorized by vote of more than two-thirds of
all outstanding shares entitled to vote thereon.
In witness whereof, the undersigned have executed these Articles of
Amendment this 13 th day of May 1999.
/s/ RICHARD J. GLASIER /s/ MICHAEL J. SMITH
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Richard J. Glasier Michael J. Smith
Executive Vice President Secretary
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DOCUMENT NO. 2
BY-LAWS
OF
ROYAL CARIBBEAN CRUISES LTD.
(a Liberian Corporation)
ARTICLE I
Offices
SECTION 1.01. REGISTERED ADDRESS
The registered address of the Corporation shall be at 80 Broad Street, Monrovia,
Liberia and its registered agent at such address shall be The International
Trust Company of Liberia.
SECTION 1.02. OTHER OFFICES
The Corporation may also have and maintain an office or offices at such other
places within or without the Republic of Liberia as the Board of Directors may
from time to time determine or the business of the Corporation requires.
ARTICLE II
Meetings of Shareholders
SECTION 2.01. PLACE OF MEETING
All meetings of the Shareholders of the Corporation shall be held at such place
or places within or outside the Republic of Liberia as shall be designated by
the Board of Directors in the notice of such meeting.
SECTION 2.02. ANNUAL MEETING
The Board of Directors may fix the date and time of the Annual Meeting of the
Shareholders but if no such date and time is fixed by the Board of Directors,
the meeting for any calendar year shall be held on the first Thursday in May in
such year, if not a legal holiday, and if a legal holiday then on the next
succeeding business day, at 11:00 a.m. and at such meeting the Shareholders then
entitled to vote shall elect directors and shall transact such other business as
may properly be brought before the meeting.
SECTION 2.03. SPECIAL MEETINGS
Special Meetings of the Shareholders of the Corporation for any purpose or
purposes for which meetings may lawfully be called, may be called at any time
for any purposes by the resolution of the Board of Directors or by the Chief
Executive Officer and shall be called by the Secretary at the request of the
Shareholders owning shares having at least 50 per cent of the votes entitled to
be cast at meetings of the Shareholders. At any time, upon written request of
any of the foregoing persons who have duly called a Special Meeting, which
written request shall state the purpose or purposes of the meeting, it shall be
the duty of the Secretary to fix a date and time for such meeting to be held
being not less than fifteen (15) nor more than sixty (60) days after the receipt
of the request unless otherwise provided by statute, and also the place of the
meeting and to give due notice thereof. If the Secretary shall neglect or refuse
to fix the time, date or place of such meeting and give notice thereof, the
person or persons calling the meeting may do so in accordance with the
provisions of Section 2.04 hereof. Special Meetings in default of the annual
meeting may be called as provided by statute.
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SECTION 2.04. NOTICE OF MEETINGS
Written notice of all meetings of the Shareholders stating the purpose or
purposes for which the meeting is called, the name of the person or persons at
whose direction the notice is being given, the date and time when and the place
where it is to be held, shall be given at least fifteen (15) but not more than
sixty (60) days before such meeting, to each Shareholder of record entitled to
vote at such meeting and to each member of the Board of Directors. Notice of a
meeting need not be given to any such person who submits a signed waiver of
notice, whether before or after the meeting, or who attends the meeting without
protesting prior to the conclusion thereof of the lack of notice to him.
SECTION 2.05. QUORUM, MANNER OF ACTING AND ADJOURNMENT
The presence in person or by proxy at any meeting of the Shareholder or
Shareholders holding between them shares having a majority of the votes entitled
to be cast shall constitute a quorum for the transaction of business at such
meeting except as otherwise required by statute, the Articles of Incorporation
or these By-Laws. If a quorum shall not be present or represented at any meeting
of the Shareholders within one hour of the time appointed for the meeting, the
meeting shall be adjourned ("the First Adjournment"). The Secretary of the
Corporation shall then issue a notice of the adjourned meeting stating the time
and place that the adjourned meeting shall be reconvened. The notice shall be
issued within two (2) days of the First Adjournment and no fewer than five (5)
days prior to the reconvening of the adjourned meeting and shall be given to
each Shareholder of record entitled to vote at such meeting in the same manner
as is provided for in these By-Laws for giving notice of the original meeting.
The notice shall state that the only business which may be transacted is that
which might have been transacted on the original date of the meeting.
If a quorum shall not be present or represented at the reconvened meeting of the
Shareholders within one hour of the time appointed for the reconvened meeting,
the meeting shall be adjourned ("the Second Adjournment"). The Secretary of the
Corporation shall then issue a notice of the adjourned meeting stating the time
and place that the adjourned meeting shall be reconvened. The notice shall be
issued within two (2) days of the Second Adjournment and no fewer than five (5)
days prior to the reconvening of the adjourned meeting and shall be given to
each Shareholder of record entitled to vote at such meeting in the same manner
as is provided for in these By-Laws for giving notice of the original meeting.
The notice shall state that the only business which may be transacted is that
which might have been transacted on the original date of the meeting. At such
reconvened meeting, if a quorum comprising Shareholders holding shares having
one third of the votes entitled to be cast at such meeting is not or has not
been present within one hour of the time for the commencement of the adjourned
meeting, the meeting shall be dissolved.
When a quorum for the transaction of business is present at any meeting, a
majority of the votes cast by the holders of shares present in person or
represented by proxy and entitled to vote on such question shall decide such
question brought before such meeting, unless the question is one upon which, by
express provision of any applicable statute or of the Articles of Incorporation,
a different vote or result is required in which case such express provision
shall govern and control the decision of such question. The Shareholders present
in person or by proxy at a duly convened meeting can continue to transact
business until adjournment, notwithstanding withdrawal of Shareholders so as to
leave fewer than a quorum present.
SECTION 2.06. ORGANIZATION
At every meeting of the Shareholders, the Chairman of the Board, if there be
one, or in the case of vacancy in the office or absence of the Chairman of the
Board, one of the
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following persons present in the order stated: the vice chairman of the Board,
if there be one or in their order of rank or seniority if there be more than
one, the Chief Executive Officer, the President, the vice presidents in their
order of rank or seniority, a chairman designated by those members of the Board
of Directors present at the meeting or a chairman chosen by the Shareholders in
the manner provided in Section 2.05 of this Article; shall act as chairman, and
the Secretary, or in his absence, an assistant secretary, or in the absence of
the Secretary and assistant secretaries, a person appointed by the Chairman,
shall act as secretary.
SECTION 2.07 VOTING BY PROXY
Each Shareholder entitled to vote at a meeting of the Shareholders may authorize
any person to act for him by proxy. To be valid, a proxy must comply in form and
substance with all applicable provisions of Liberian law, including, without
limiting the generality of the foregoing, the following provisions. No proxy
shall be valid after 11 months from its date, unless the proxy provides
otherwise. Every proxy shall be signed by the Shareholder or by his
attorney-in-fact and filed (together, in the case of any proxy executed by an
attorney-in-fact, with a copy of such power of attorney) with the Secretary of
the Corporation. A proxy, unless expressly stated to be irrevocable as provided
in this Section, shall be revocable at the pleasure of the Shareholder, but the
revocation of a proxy shall not be effective until notice thereof has been given
to the Secretary of the Corporation. A duly executed proxy shall be irrevocable
if it is entitled "irrevocable proxy" and states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient to support an
irrevocable power, including any of the circumstances set forth in Section
7.6(6) of the Business Corporation Act, and shall cease to be irrevocable upon
the circumstance set forth in Section 7.6(7) and (8) of the Business Corporation
Act. The giving of a proxy by any Shareholder to any other person shall not
exempt such Shareholder from compliance with any requirement of any applicable
statute, the Articles of Incorporation or these By-Laws relating to the
conditions under which such shares may be voted.
SECTION 2.08. ACTION BY SHAREHOLDERS WITHOUT A MEETING
Any action which is required to be or which may be taken at any Annual or
Special Meeting of Shareholders of the Corporation may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by all the Shareholders
entitled to vote with respect to the subject matter thereof.
SECTION 2.09. VOTING LISTS
A list of Shareholders of record who are entitled to vote on each item of
business to be transacted, together with the number of votes which they are
entitled to vote certified by the Secretary shall be produced at any meeting of
Shareholders upon request of any Shareholder at the meeting or prior thereto. If
the right to vote, or the number of votes which may be cast is challenged, the
inspector or inspectors of election, or person presiding thereat, shall require
the list of Shareholders to be produced as evidence of the right of the persons
challenged to vote and all persons who appear from the list to be Shareholders
entitled to vote may vote on such item at such meeting, and may cast the number
of votes which the list shows that such person may cast.
SECTION 2.10. INSPECTORS OF ELECTION
In advance of any meeting of Shareholders, the Board of Directors may appoint
inspectors of election, who need not be Shareholders, to act at such meeting or
any adjournment thereof. If inspectors of election are not so appointed, the
person presiding at any such meeting may, and on the request of any Shareholder
entitled to vote at the meeting and before voting begins shall, appoint
inspectors of election. The number of inspectors shall be either one or three,
as determined, in the case of inspectors appointed upon demand of
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a Shareholder, by the Shareholders in the manner provided in Section 2.05
hereof, and otherwise by the Board of Directors or the person presiding at the
meeting, as the case may be. In case any person appointed fails to appear or
act, the vacancy may be filled by appointment made by the Board of Directors in
advance of the meeting, or at the meeting by the person presiding at the
meeting. Each inspector, before entering upon the discharge of his duties, shall
take an oath faithfully to execute the duties of inspector at such meeting.
If inspectors of election are appointed as aforesaid, they shall determine from
the lists referred to in Section 2.09 hereof the number of shares outstanding,
the shares represented at the meeting, the existence of a quorum, and the voting
power of shares represented at the meeting, determine the authenticity, validity
and effect of proxies, receive votes or ballots, hear and determine all
challenges and questions in any way arising in connection with the right to vote
or the number of votes which may be cast, count and tabulate all votes or
ballots, determine the results, and do such acts as are proper to conduct the
election or vote with fairness to all Shareholders entitled to vote thereat. If
there be three inspectors of election, the decision, act or certificate of a
majority shall be effective in all respects as the decision, act or certificate
of all.
Unless waived by vote of the Shareholders conducted in the manner provided in
Section 2.05 hereof, the inspectors shall make a report in writing of any
challenge or question or matter determined by them, and execute a sworn
certificate of any fact found by them.
SECTION 2.11 ELECTION OF DIRECTORS
Elections of directors need not be by written ballot. Cumulative voting for
directors shall not be permitted.
SECTION 2.12. SUBMISSION OF PROPOSALS BY SHAREHOLDERS
In order for a Shareholder to properly place any matter, other than procedural
matters relating to the conduct of the meeting, before any Annual Meeting of
Shareholders, such Shareholder must provide the Secretary of the Corporation
with written notice of such matter (a) no later than one hundred and twenty days
prior to the first anniversary of the Corporation's last Annual Meeting of
Shareholders or (b) if no annual meeting was held in the prior year or the date
of the annual meeting has changed by more than 30 days from the previous year's
meeting date, no later than the later of the one hundred and twentieth day prior
to such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made by the Corporation. In
the event that such matter is the nomination of a person for election as a
director of the Corporation, such notice must include the name of such person,
information concerning such person's business experience and background and such
person's written consent to serving as a director if elected. In the event that
such matter is any other proposal, such notice must include a description of the
proposal and an explanation of the reason for the proposal. In either case, the
notice must include the identity of the Shareholder making the proposal, the
number of shares owned by such Shareholder and the nature of such holdings. No
Shareholder shall be eligible to make a proposal at any Annual Meeting of
Shareholders, other than procedural matters relating to the conduct of such
meeting, unless proper notice of such proposal has been given to the Secretary
of the Corporation in a timely manner as set forth above.
In order for a Shareholder to properly place any matter, other than procedural
matters relating to the conduct of the meeting, before any Special Meeting of
Shareholders, such Shareholder must comply with the terms of Section 2.03 of
these By-Laws, provided that with respect to any Special Meeting of Shareholders
called for the election of directors, a Shareholder may nominate a person for
election as a director if a written notice complying with the requirements set
forth in the preceding paragraph is received by the
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Secretary of the Corporation no later than seven (7) days following the date on
which notice of such meeting is first given to the Shareholders.
ARTICLE III
Board of Directors
SECTION 3.01. POWERS
All powers of the Corporation, except those specifically reserved or granted to
the Shareholders by statute, the Articles of Incorporation or these By-Laws, are
hereby granted to and vested in the Board of Directors; all such powers shall be
exercised by or under the authority of, and the business and affairs of the
Corporation shall be managed by, the Board of Directors.
SECTION 3.02. NUMBER AND TERM OF OFFICE
The Board of Directors shall consist of twelve directors. The Board of Directors
shall be divided into three classes, as nearly equal in number as the then total
number of directors constituting the entire Board permits, with the term of
office of one class expiring each year. The initial Class I directors elected by
the shareholders of the Corporation shall hold office for a term expiring at the
2000 annual meeting of shareholders and until their successors shall have been
elected and qualified; the initial Class II directors elected by the
shareholders of the Corporation shall hold office for a term expiring at the
2001 annual meeting of shareholders and until their successors shall have been
elected and qualified; and the initial Class III directors elected by the
shareholders of the Corporation shall hold office for a term expiring at the
2002 annual meeting of shareholders and until their successors have been elected
and qualified. At each such annual meeting of shareholders and at each annual
meeting thereafter, successors to the class of directors whose term expires at
that meeting shall be elected for a term expiring at the third annual meeting of
shareholders following their election and until their successors have been
elected and qualified.
In the event of any change in the number of directors, the Board of Directors
shall apportion any newly created directorships among, or reduce the number of
directorships in, such class or classes as shall equalize, as nearly as
possible, the number of directors in each class.
SECTION 3.03. VACANCIES
Vacancies on the Board of Directors shall be filled by a majority of the
directors then in office, even though less than a quorum. Directors chosen to
fill vacancies shall hold office for the unexpired terms of their respective
predecessors and until their successors are duly elected and shall qualify.
SECTION 3.04. RESIGNATION OF DIRECTORS
Any director of the Corporation may resign at any time by giving written notice
to the Secretary. Such resignation shall take effect at the date of the receipt
of such notice or at any later time specified therein and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
SECTION 3.05. ORGANIZATION
At every meeting of the Board of Directors, the Chairman of the Board, if there
be one, or, in the case of a vacancy in the office or absence of the Chairman of
the Board, one of the following officers present in the order stated: the vice
chairman of the Board, if there be one or in their order of rank and seniority
if more than one, the Chief Executive Officer, the President, the vice
presidents in their order of rank and seniority, or a chairman chosen by a
majority of the directors present, shall preside, and the Secretary,
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or, in his absence, an assistant secretary, or in the absence of the Secretary
and the assistant secretaries, any person appointed by the chairman of the
meeting shall act as secretary.
SECTION 3.06. PLACE OF MEETING
The Board of Directors may hold its meetings, both regular and special, at such
place or places within or outside the Republic of Liberia as the Board of
Directors may from time to time appoint, or as may be designated in the notice
calling the meeting.
SECTION 3.07. REGULAR MEETINGS
Regular meetings of the Board of Directors may be held without notice at such
time and place as shall be designated from time to time by resolution of the
Board of Directors. At such meetings, the directors may transact such business
as may properly be brought before the meeting.
SECTION 3.08. SPECIAL MEETINGS
Special Meetings of the Board of Directors shall be held whenever called by the
Chief Executive Officer or by two or more of the directors. Notice of each such
meeting shall be given to each director by telephone or in writing at least 24
hours (in the case of notice by telephone) or 48 hours (in the case of notice by
telegraph, cablegram, telex, facsimile or teleprinter) or 10 days (in the case
of notice by mail) before the time at which the meeting is to be held. Each such
notice shall state the time and place of the meeting to be so held, and shall
also state the purpose or purposes of the meeting.
SECTION 3.09. VOTING BY PROXY
Each director may authorize another director to act for him by proxy at meetings
of the Board of Directors, at meetings of committees of the Board of which he is
a member and giving a written consent in lieu of meetings of the Board of
Directors and such committees on behalf of his appointor. A proxy to a director
shall be given in an instrument in writing including a telegram, cable, telex,
teleprinter, facsimile or similar communication equipment and shall be produced
to the first meeting at which it is used or otherwise delivered to the Secretary
of the Corporation. A proxy shall be conclusive evidence of its validity until
notice of revocation of such proxy in writing including a telegraph, cable,
telex, teleprinter or similar communications equipment has been delivered to the
Secretary of the Corporation.
SECTION 3.10. QUORUM, MANNER OF ACTING, ADJOURNMENT AND ACTION WITHOUT MEETING
At all meetings of the Board of Directors the presence, in person or by proxy,
of a simple majority of the total number of directors shall constitute a quorum
for the transaction of business except as may be otherwise specifically provided
by the Business Corporation Act, by Article SEVENTH of, or otherwise by, the
Articles of Incorporation or by these By-Laws. The act of a simple majority of
the directors present in person or by proxy at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by the Business Corporation Act, by Article SEVENTH of, or
otherwise by, the Articles of Incorporation or by these By-Laws. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
Any person who is himself a director and acting as a proxy for any other
director shall be entitled to have one vote for each capacity in which he so
acts (in addition to any vote he may have as a director).
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Any action required or permitted to be taken at any meeting of the Board of
Directors or any committee thereof may be taken without a meeting, if all of the
members of the Board of Directors or committee (or other proxies) consent
thereto in writing, and the writings are filed with the minutes of proceedings
of the Board of Directors or committee.
SECTION 3.11. CONFERENCE TELEPHONE MEETINGS
One or more directors may participate in a meeting of the Board of Directors, or
of a committee of the Board, by means of conference telephone or similar
communications equipment by means of which all persons can hear each other.
Participation in a meeting pursuant to this Section shall constitute presence in
person at such meeting.
SECTION 3.12. EXECUTIVE AND OTHER COMMITTEES OF THE BOARD
The Board of Directors may, by resolutions adopted by a majority vote of the
entire Board of Directors, designate from among its members an executive
committee and one or more other committees (having such name or names as may be
determined from time to time by resolution adopted by the Board of Directors),
each committee to consist of two or more directors. The Board of Directors shall
designate the chairman of each such committee, and may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee.
The executive committee and any other committee designated by the Board of
Directors shall have and may exercise such powers and authorities as shall be
provided in the resolution of the Board of Directors establishing such
committee; but no committee of the Board of Directors shall have the power or
authority in reference to the submission to Shareholders of any action that
requires Shareholders' authorization under the Business Corporation Act or the
Articles of Incorporation, the filling of vacancies in the Board of Directors or
in a committee, the fixing of the compensation of the directors for serving on
the Board of Directors or on any committee, the amendment or repeal of the
By-Laws or the adoption of new By-Laws, or the amendment or repeal of any
resolution of the Board of Directors other than one which is by its terms so
amendable or repealable.
Meetings of committees shall be called in the manner provided in the resolution
of the Board of Directors establishing such committee or as otherwise determined
by such committee. Unless otherwise so provided, meetings of any committee may
be called by the chairman of such committee, or by the secretary of such
committee on the request of any two (2) members of such committee, on the same
notice to each member as is required by Section 3.08 hereof. Unless otherwise
provided in the resolution of the Board of Directors establishing a committee,
two-thirds of the directors in the office designated to any committee (but in
all events not less than two (2) such directors) shall be present at each
meeting to constitute a quorum for the transaction of business, and the acts of
such committee. Each committee so formed shall fix its own rules of proceeding,
appoint its own secretary, keep regular minutes of its meetings and report the
same to the Board of Directors when required.
SECTION 3.13. COMPENSATION OF DIRECTORS
The Board of Directors shall have the authority to fix the compensation of
directors. The directors may be paid a fixed annual fee as director, in addition
to or in lieu of a fixed sum for attendance at each meeting of the Board of
Directors. Directors may also be remunerated separately for specific projects
undertaken or services rendered on behalf of the Corporation at the request of
the Board of Directors, and shall be reimbursed for their expenses incurred in
performing their duties as directors, including attendance at meetings and
specific projects undertaken or services rendered on behalf of the Corporation.
No such payment shall preclude any directors from serving the Corporation in any
other capacity and receiving compensation and reimbursement of expenses thereof.
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SECTION 3.14. PREFERRED DIRECTORS.
Notwithstanding anything else contained herein, whenever the holders of one or
more classes or series of preferred stock shall have the right, voting
separately as a class or series, to elect directors, the election, term of
office, filling of vacancies, removal and other features of such directorships
shall be governed by the terms of the resolutions applicable thereto adopted by
the Board of Directors pursuant to the Articles of Incorporation.
SECTION 3.15. SPECIFIC AND GENERAL POWERS OF DIRECTORS
Subject to any regulations from time to time made by the Shareholders, the Board
of Directors shall have the management of the affairs, business and property of
the Corporation and may do all such acts as are not prohibited by law, by the
Articles of Incorporation, or by these By-Laws, and as are not reserved to the
Shareholders.
ARTICLE IV
Officers
SECTION 4.01. NUMBER, QUALIFICATIONS AND DESIGNATION
The officers of the Corporation shall be chosen by the Board of Directors and
shall be a Chief Executive Officer, a President, one or more vice presidents, a
Secretary, a Treasurer, and such other officers as may be elected or appointed
in accordance with the provisions of Section 4.03. Officers may be of any
nationality and need not be residents or citizens of the Republic of Liberia.
One person may hold more than one office. Officers may be, but need not be,
directors or Shareholders of the Corporation.
SECTION 4.02. ELECTION AND TERM OF OFFICE
The officers of the Corporation, except those appointed by delegated authority
pursuant to Section 4.03, shall be elected annually by the Board of Directors,
and each such officer shall hold his office until his successor shall have been
elected or appointed and qualified, or until his earlier death, resignation or
removal. Any officer may resign at any time upon written notice to the
Corporation. Any officer elected by the Board of Directors or appointed by
delegated authority may be removed by the Board of Directors or by the
appointing authority with or without cause. The removal of an officer without
cause shall be without prejudice to his contract rights, if any. The election or
appointment of an officer shall not of itself create contract rights.
SECTION 4.03. OTHER OFFICERS, SUBORDINATE OFFICERS, NON-BOARD COMMITTEES AND
AGENTS
The Board of Directors may from time to time elect such other officers and
appoint such employees or other agents, or such committees (not constituting
committees of the Board of Directors), as it deems necessary, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as are provided in these By-Laws, or as the Board of Directors may from
time to time determine. The Board of Directors may delegate to any officer or
committee of the Board referred to in Section 3.12 the power to appoint
subordinate officers and to retain or appoint employees or other agents, or
committees (not constituting committees of the Board of Directors) and to
prescribe the authority, duties and compensation of such subordinate officers,
committees, employees or other agents.
SECTION 4.04. THE CHAIRMAN OF THE BOARD
The Chairman of the Board shall preside at all meetings of the Shareholders and
of the Board of Directors, and shall perform such other duties as may from time
to time be assigned to him by the Board of Directors. The Chairman may also be
the Chief Executive Officer and/or the President of the Corporation.
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SECTION 4.05. THE CHIEF EXECUTIVE OFFICER
The Chief Executive Officer shall have general supervision over the affairs of
the Corporation. The Chief Executive Officer shall have the power to sign,
execute and acknowledge, in the name of the Corporation, deeds, mortgages,
bonds, contracts or other instruments, shall make reports to the Board of
Directors and the Shareholders, shall have like powers to those of the
President, and, in general, shall perform all duties incident to the office of
Chief Executive Officer.
SECTION 4.06. THE PRESIDENT
The President shall have the power to sign, execute and acknowledge, in the name
of the Corporation, deeds, mortgages, bonds, contracts or other instruments, as
authorized by the Board of Directors, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of Directors, or by
these By-Laws or by statute, to some other officer or agent of the Corporation
and, in general, shall perform such other duties as from time to time may be
assigned to him by the Board of Directors.
SECTION 4.07. THE VICE PRESIDENTS
The vice presidents shall perform such duties as may from time to time be
assigned to them by the Board of Directors, the Chief Executive Officer or the
President.
SECTION 4.08. THE SECRETARY
The Secretary, or an assistant secretary, shall attend all meetings of the
Shareholders and of the Board of Directors and shall record the proceedings of
the Shareholders and of the directors in a book or books to be kept for that
purpose; see that notices are given and records and reports are properly kept
and filed by the Corporation as required by law, the Articles of Incorporation
or these By-Laws; be the custodian of the seal of the Corporation; and, in
general, perform all duties incident to the office of Secretary, and such other
duties as may from time to time be assigned to him by the Board of Directors,
the Chief Executive Officer or the President. Except as otherwise required by
law, the Secretary's signature shall not be required to bind the Corporation.
SECTION 4.09. THE TREASURER
The Treasurer or assistant treasurer shall have or provide for the custody of
the funds or other property of the Corporation and shall keep a separate book of
account of the same to his credit as Treasurer; collect and receive or provide
for the collection and receipt of moneys earned by or in any manner due to or
received by the Corporation; deposit all funds in his custody as Treasurer in
such banks or other places of deposit as the Board of Directors may from time to
time designate; whenever so required by the Board of Directors, render an
account showing his transactions as Treasurer and the financial condition of the
Corporation; and, in general, discharge such other duties as may from time to
time be assigned to him by the Board of Directors, the Chief Executive Officer
or the President.
SECTION 4.10. OFFICERS' BONDS
No officer of the Corporation need provide a bond to guarantee the faithful
discharge of his duties unless the Board of Directors shall by resolution so
require, in which event such officer shall give the Corporation a bond (which
shall be renewed if and as required) in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office.
SECTION 4.11. SALARIES OF ELECTED OFFICERS
The salaries of the officers of the Corporation elected by the Board of
Directors shall be fixed from time to time by the Board of Directors or pursuant
to authority conferred by the Board of Directors.
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ARTICLE V
Certificates of Stock, Transfer, Etc.
SECTION 5.01. ISSUE
Each Shareholder shall be entitled to a certificate or certificates for shares
of the Corporation owned by him upon his request thereof. All share certificates
of the Corporation shall be numbered and registered in the share ledger and
transfer books of the Corporation as they are issued. They shall be signed by
the President or a vice president and by the Secretary or an assistant secretary
or the Treasurer or an assistant treasurer, and may bear the corporate seal,
which may be a facsimile. The signatures of the officers upon such certificate
may be facsimiles, if the certificate is countersigned by a transfer agent or
registered by a registrar other than the Corporation itself or its employees. In
case any officer who has signed, or whose facsimile signature has been placed
upon, any share certificate shall have ceased to be such officer before the
certificate is issued it may be issued or delivered with the same effect as if
he were such officer at the date of its issue or delivery. The Corporation shall
keep a record containing the names and addresses of all registered Shareholders,
the number and class of shares held by each and the date when they respectively
became the owners of record thereof.
SECTION 5.02. TRANSFER
Transfer of shares issued in the name of a holder of record shall be made on the
books of the Corporation only by the person named in the certificate or by his
attorney lawfully constituted and upon surrender of and cancellation of the
certificate therefor. Every transfer of shares by holders of record shall be
entered on the stock book of the Corporation. Upon surrender to the Corporation
or the transfer agent of the Corporation of a certificate for registered shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Transfer of shares of the Corporation that are subject to the restrictions
contained in the Shareholders Agreement dated as of February 1, 1993 between A.
Wilhelmsen AS. and Cruise Associates (the "Shareholders Agreement"), a copy of
which is on file with the Secretary of the Corporation, shall only be made in
accordance with the terms of the Shareholders Agreement. The Corporation shall
be entitled to rely upon a written certificate of the Shareholder concerning the
compliance with such conditions. The Secretary of the Corporation shall not
register the transfer of shares that are subject to the restrictions of the
Shareholders Agreement if either A. Wilhelmsen AS. or Cruise Associates notifies
the Secretary that such transfer would violate the terms of the Shareholders
Agreement.
Any applicant to transfer shares shall pay to the Corporation any stamp or other
duties or taxes payable in respect of the transfer, together with any charges
imposed by the Corporation in respect of such transfer, all prior to and as a
condition precedent to the issuance of any new certificates to such applicant.
SECTION 5.03. SHARE CERTIFICATES
Share certificates of the Corporation shall be in such form as is provided by
statute and approved by the Board of Directors. Shares that are subject to the
restrictions of the Shareholders Agreement shall bear the legend required by
Section 18 of the Shareholders Agreement. The holders of shares bearing the
legend required by Section 18 of the Shareholders Agreement may obtain share
certificates without legends in connection with a transfer of the shares
represented by such certificates by providing a written certification
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to the Corporation to the effect that the transfer is being made in compliance
with the terms of the Shareholders Agreement to a person who is not a party to,
and who is not becoming a party to, the Shareholders Agreement. The share record
books and the blank share certificates shall be kept by the Secretary or by any
agency designated by the Board of Directors for that purpose.
SECTION 5.04. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES
The Board of Directors may direct a new certificate or new certificates to be
issued in place of any certificate or certificates previously issued by the
Corporation and alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate to be lost,
stolen or destroyed. When authorizing such issue of a new certificate or new
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issue thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as the Board of Directors shall require and to give the
Corporation a bond in such sum as the Board of Directors may direct as indemnity
against any claims that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
SECTION 5.05. RECORD HOLDER OF SHARES
The Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of registered shares to receive dividends,
to vote and to exercise any other rights in respect of the shares held as the
owner thereof. The Corporation shall not be bound to recognize any equitable or
other claim to or interest in any registered share or shares on the part of any
person other than a person registered on its books as the owner of such
registered share or shares whether or not it shall have express or other notice
thereof.
SECTION 5.06. DETERMINATION OF SHAREHOLDERS OF RECORD
In order that the Corporation may determine the holders of registered shares
entitled to notice of meeting of Shareholders, or entitled to express consent to
or dissent from any proposed corporate action without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any rights
in respect of any change, conversion or exchange of shares or for the purposes
of any other action, the Board of Directors may fix, in advance, a record date,
which shall not be more than 60 nor less than 15 days before the date of such
meeting, nor more than 60 days prior to any other action. A determination of
registered Shareholders of record entitled to notice of or to vote at a meeting
of Shareholders shall apply to any adjournment of the meeting; except that the
Board of Directors may fix a new record date for an adjourned meeting.
ARTICLE VI
Notices
SECTION 6.01. NOTICE PROVISIONS
Whenever, under the provisions of the statutes of the Republic of Liberia or the
Articles of Incorporation or these By-Laws, any notice, request, demand or other
communication is required to be or may be given or made to any officer,
director, or registered Shareholder, it shall not be construed to mean that such
notice, request, demand or other communication must be given or made in person
but the same may be given or made in person, by mail, telegraph, cablegram,
telex, facsimile or teleprinter to such officer, director or registered
Shareholder and shall be considered to have been properly given or made, in the
case of mail, telegraph or cable, when deposited in the mail or delivered to the
appropriate office for telegraph or cable transmission, and in other cases when
transmitted by the party giving or making the same, directed to the officer or
director or to a registered Shareholder at his address as it appears on the
records of the Corporation, or, if
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the Shareholder shall have filed with the secretary of the Corporation a written
request that notice to him be mailed to some other address, then directed to the
Shareholder at such other address. Notice to directors may also be given in
accordance with Section 3.08. Any notice dispatched by mail shall be sent by
first class air mail or other fast postal service and shall be properly stamped
prior to deposit in the mail.
SECTION 6.02. NOTICE TO CORPORATION
Whenever, under the provisions of the statutes of the Republic of Liberia or the
Articles of Incorporation or these By-Laws, any notice, request, demand or other
communication is required to be or may be given or made to the Corporation, it
shall also not be construed to mean that such notice, request, demand or other
communication must be given or made in person, but the same may be given or made
to the Corporation by mail, telegraph, cablegram, telex, facsimile or
teleprinter. Any such notice, request, demand or other communication shall be
considered to have been properly given or made, in the case of mail, telegram or
cable, when deposited in the mail or delivered to the appropriate office for
telegraph or cable transmission, and in other cases when transmitted by the
party giving or making the same, directed to the Corporation at its then
registered address, provided that a copy of the same is sent by like medium of
communication to the attention of the secretary at the Corporation's then
principal place of business.
SECTION 6.03. WAIVER OF NOTICE
Whenever any written notice is required to be given under the provision of the
Articles of Incorporation, these By-Laws or by statute, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Shareholders, directors, or members of a
committee of directors need be specified in any written waiver of notice of such
meeting.
Attendance of a person, either in person or by proxy, at any meeting, without
protesting prior to the conclusion of the meeting the lack of notice of such
meeting, shall constitute a waiver of notice of such meeting.
ARTICLE VII
Indemnification
SECTION 7.01. GENERAL
The Corporation shall indemnify, and advance Expenses (as hereinafter defined)
to, Indemnitee (as hereinafter defined) as provided in this Article VII and to
the fullest extent permitted by applicable law.
SECTION 7.02. PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT
OF THE CORPORATION
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 7.02 if, by reason of his Corporate Status (as hereinafter defined), he
was or is, or is threatened to be made, a party to any threatened, pending, or
completed Proceeding (as hereinafter defined), other than a Proceeding by or in
the right of the Corporation to procure a judgment in its favor. Pursuant to
this Section 7.02, Indemnitee shall be indemnified against Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with such Proceeding or any claim, issue
or matter therein, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the Corporation, and,
with respect to any criminal Proceeding, had no reasonable cause to believe his
conduct was unlawful.
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SECTION 7.03. PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 7.03 if, by reason of his Corporate Status, he was or is, or is
threatened to be made, a party to any threatened, pending or completed
Proceeding brought by or in the right of the Corporation to procure a judgment
in its favor. Pursuant to this Section, Indemnitee shall be indemnified against
Expenses actually and reasonably incurred by him or on his behalf in connection
with such Proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation.
Notwithstanding the foregoing, no indemnification against such Expenses shall be
made in respect of any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Corporation for
negligence or misconduct in the performance of his duty to the Corporation if
applicable law prohibits such indemnification; provided, however, that, if
applicable law so permits, indemnification against Expenses shall nevertheless
be made by the Corporation in such event if and only to the extent that the
Court of competent jurisdiction in which such Proceeding shall have been brought
or is pending, shall determine.
SECTION 7.04. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY
OR PARTLY SUCCESSFUL
Notwithstanding any other provision of this Article VII, to the extent that
Indemnitee is, by reason of his Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Corporation shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by
him or on his behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Section 7.04 and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal or
voluntary action, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.
SECTION 7.05. INDEMNIFICATION FOR EXPENSES OF A WITNESS
Notwithstanding any other provision of this Article VII, to the extent that
Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding in
which he is not a party, he shall be indemnified against all Expenses actually
and reasonably incurred by him or on his behalf in connection therewith.
SECTION 7.06. ADVANCEMENT OF EXPENSES
The Corporation shall advance all reasonable Expenses incurred by or on behalf
of Indemnitee in connection with any Proceeding within twenty (20) days after
the receipt by the Corporation of a statement or statements from Indemnitee
requesting such advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by Indemnitee and shall include or be
preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay
any Expenses advanced if it shall ultimately be determined that Indemnitee is
not entitled to be indemnified against such Expenses.
SECTION 7.07. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION
(a) To obtain indemnification under this Article VII, Indemnitee shall submit to
the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Corporation shall, promptly
upon receipt of such a request for
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indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the first
sentence of Section 7.07(a) hereof, a determination, if required by applicable
law, with respect to Indemnitee's entitlement thereto shall be made in the
specific case: (i) if a Change in Control (as hereinafter defined) shall have
occurred, by Independent Counsel (as hereinafter defined) (unless Indemnitee
shall request that such determination be made by the Board of Directors, in
which case by the person or persons or in the manner provided for in clauses
(ii) or (iii) of this Section 7.07(b)) in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee; (ii) if a Change of
Control shall not have occurred, (A) by the Board of Directors by a majority
vote of a quorum consisting of Disinterested Directors (as hereinafter defined)
or (B) if such quorum is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to Indemnitee; or
(iii) as provided in Section 7.08(b) of this Article; and, if it is so
determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within ten (10) days after such determination. Indemnitee shall
cooperate with the person, persons or entity making such determination with
respect to Indemnitee's entitlement to indemnification, including providing to
such person, persons or entity upon reasonable advance request any documentation
or information which is not privileged or otherwise protected from disclosure
and which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys' fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Corporation
(irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Corporation hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(c) In the event the determination of entitlement to indemnification is to be
made by Independent Counsel pursuant to Section 7.07(b) of this Article VII, the
Independent Counsel shall be selected as provided in this Section 7.07(c). If a
Change of Control shall not have occurred, the Independent Counsel shall be
selected by the Board of Directors, and the Corporation shall give written
notice to Indemnitee advising him of the identity of the Independent Counsel so
selected. If a Change in Control shall have occurred, the Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board of Directors, in which event the preceding
sentence shall apply), and Indemnitee shall give written notice to the
Corporation advising it of the identity of the Independent Counsel so selected.
In either event, Indemnitee or the Corporation, as the case may be, may, within
seven (7) days after such written notice of selection shall have been given,
deliver to the Corporation or to Indemnitee, as the case may be, a written
objection to such selection. Such objection may be asserted only on the ground
that the Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in Section 7.13 of this Article VII, and the
objection shall set forth with particularity the factual basis of such
assertion. If such written objection is made, the Independent Counsel so
selected may not serve as Independent Counsel unless and until a Court has
determined that such objection is without merit. If, within twenty (20) days
after submission by Indemnitee of a written request for indemnification pursuant
to Section 7.07(a) hereof, no Independent Counsel shall have been selected and
not objected to, either the Corporation or Indemnitee may petition any Court of
competent jurisdiction for resolution of any objection which shall have been
made by the Corporation or Indemnitee to the other's selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person selected
by the Court or by such other person as the Court shall designate, and the
person with respect to whom an objection is so resolved or the person so
appointed shall act as Independent Counsel under Section 7.07(b) hereof. The
Corporation shall pay any and all reasonable fees and expenses of Independent
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Counsel incurred by such Independent Counsel in connection with acting pursuant
to Section 7.07(b) hereof, and the Corporation shall pay all reasonable fees and
expenses incident to the procedures of this Section 7.07(c), regardless of the
manner in which such Independent Counsel was selected or appointed. Upon the due
commencement of any judicial proceeding or arbitration pursuant to Section
7.09(a)(iii) of this Article VII, Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
SECTION 7.08. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS
(a) If a Change of Control shall have occurred, in making a determination with
respect to entitlement to indemnification hereunder, the person, persons or
entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Article if Indemnitee has submitted a request for
indemnification in accordance with Section 7.07(a) of this Article, and the
Corporation shall have the burden of proof to overcome that presumption in
connection with the making by any person, persons or entity of any determination
contrary to that presumption.
(b) If the person, persons or entity empowered or selected under Section 7.07 of
this Article VII to determine whether Indemnitee is entitled to indemnification
shall not have made such determination within sixty (60) days after receipt by
the Corporation of the request therefore, the requisite determination of
entitlement to indemnification shall be deemed to have been made in favor of
Indemnitee and Indemnitee shall be entitled to such indemnification, absent (i)
a misstatement by Indemnitee of a material fact, or an omission of a material
fact necessary to make Indemnitee's statement not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; PROVIDED, HOWEVER, that such sixty (60)
day period may be extended for a reasonable time, not to exceed an additional
thirty (30) days, if the person, persons or entity making the determination with
respect to entitlement to indemnification in good faith requires such additional
time for the obtaining or evaluation of documentation and/or information
relating thereto; and PROVIDED, FURTHER, that the foregoing provisions of this
Section 7.08(b) shall not apply if the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 7.07(b)
of this Article VII.
(c) The termination of any Proceeding or of any claim, issue or matter therein
by judgment, order, settlement, conviction, or upon a plea of NOLO CONTENDERE or
its equivalent, shall not (except as otherwise expressly provided in this
Article VII) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner in which he reasonably believed to be in or not opposed to
the best interests of the Corporation or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that his conduct was
unlawful.
SECTION 7.09. REMEDIES OF INDEMNITEE
(a) In the event that (i) a determination is made pursuant to Section 7.07 of
this Article VII that Indemnitee is not entitled to indemnification under this
Article VII, (ii) advancement of Expenses is not timely made pursuant to Section
7.06 of this Article VII, (iii) the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 7.07(b)
of this Article VII and such determination shall not have been made and
delivered in a written opinion within ninety (90) days after receipt by the
Corporation of the request for indemnification, (iv) payment of indemnification
is not made pursuant to Section 7.05 of this Article VII within ten (10) days
after receipt by the Corporation of a written request therefore, or (v) payment
of indemnification is not
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made within ten (10) days after a determination has been made that Indemnitee is
entitled to indemnification or such determination is deemed to have been made
pursuant to Section 7.08 of this Article VII, Indemnitee shall be entitled to an
adjudication in any Court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at his
option, may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association. Indemnitee shall
commence such proceeding seeking an adjudication or an award in arbitration
within one hundred eighty (180) days following the date on which Indemnitee
first has the right to commence such proceeding pursuant to this Section
7.09(a). The Corporation shall not oppose Indemnitee's right to seek any such
adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant to Section
7.07 of this Article VII that Indemnitee is not entitled to indemnification, any
judicial proceeding or arbitration commenced pursuant to this Section 7.09 shall
be conducted in all respects as a DE NOVO trial, or arbitration, on the merits
and Indemnitee shall not be prejudiced by reason of that adverse determination.
If a Change of Control shall have occurred, in any judicial proceeding or
arbitration commencing pursuant to this Section 7.09 the Corporation shall have
the burden of proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have been made pursuant
to Section 7.07 or 7.08 of this Article VII that Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 7.09,
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee's statement not materially
misleading, or (ii) a prohibition of such indemnification under applicable law.
(d) The Corporation shall be precluded from asserting in any judicial proceeding
or arbitration commenced pursuant to this Section 7.09 that the procedure and
presumptions of this Article VII are not valid, binding and enforceable and
shall stipulate in any such Court or before any such arbitrator that the
Corporation is bound by all the provisions of this Article VII unless prohibited
by law.
(e) In the event that Indemnitee, pursuant to this Section 7.09, seeks a
judicial adjudication of or an award in arbitration to enforce his rights under
or to recover damages for breach of, this Article VII, Indemnitee shall be
entitled to recover from the Corporation, and shall be indemnified by the
Corporation against, any and all expenses (of the types described in the
definition of Expenses in Section 7.13 of this Article VII) actually and
reasonably incurred by him in such judicial adjudication or arbitration, but
only if he prevails therein. If it shall be determined in said judicial
adjudication or arbitration that Indemnitee is entitled to receive part but not
all of the indemnification or advancement of expenses sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication or
arbitration shall be appropriately prorated.
SECTION 7.10. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION
(a) The rights of indemnification and to receive advancement of Expenses as
provided by this Article VII shall not be deemed exclusive of any other rights
to which Indemnitee may at any time be entitled under applicable law, the
Articles of Incorporation (including, but not limited to, Article Ninth thereof,
which provides a separate right of indemnification), the By-Laws, any agreement,
a vote of Shareholders or a resolution of directors or otherwise. No amendment,
alteration or repeal of this Article VII or of any provision hereof shall be
effective as to any Indemnitee with respect to any action taken
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or omitted by such Indemnitee in his Corporate Status prior to such amendment,
alteration or repeal. The provisions of this Article VII shall continue as to an
Indemnitee whose Corporate Status has ceased and shall inure to the benefit of
his heirs, executors and administrators.
(b) The Corporation may purchase and maintain insurance on behalf of any person
specified in Section 6.13 of the Business Corporation Act, or any person
specified in this Article VII, against liability asserted against him and
incurred by him, whether or not the Corporation would have power to indemnify
him against such liability under the provisions of the aforesaid Section 6.13.
To the extent that the Corporation maintains an insurance policy or policies
providing liability insurance for directors, officers, employees, agents or
fiduciaries of the Corporation or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which such person
serves at the request of the Corporation, Indemnitee shall be covered by such
policy or policies in accordance with its or their terms to the maximum extent
of the coverage available for any such director, officer, employee or agent
under such policy or policies.
(c) In the event of any payment under this Article VII, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all papers required and take all action necessary
to secure such rights, including execution of such documents as are necessary to
enable the Corporation to bring suit to enforce such rights.
(d) The Corporation shall not be liable under this Article VII to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
SECTION 7.11. SEVERABILITY
If any provision or provisions of this Article VII shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Article VII (including
without limitation, each portion of any Section of this Article VII containing
any such provision held to be invalid, illegal or unenforceable, that is not
itself invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (b) to the fullest extent possible, the provisions of this
Article VII (including, without limitation, each portion of any Section of this
Article VII containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
SECTION 7.12. CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION OR ADVANCEMENT OF
EXPENSES Notwithstanding any other provision of this Article VII, no person
shall be entitled to indemnification or advancement of Expenses under this
Article VII with respect to any Proceeding, or any claim therein, brought or
made by him against the Company except as provided in Section 7.09.
SECTION 7.13. DEFINITIONS
For purposes of this Article VII:
(a) "Change in Control" means a change in control of the Corporation occurring
after the Effective Date of a nature that would be required to be reported in
response to Item 5(f) of Schedule 14A of Regulation 14A (or in response to any
similar item on any similar
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schedule or form) promulgated under the Securities Exchange Act of 1934 (the
"Act"), whether or not the Corporation is then subject to such reporting
requirement; provided, however, that, without limitation, such a Change in
Control shall be deemed to have occurred if after the Effective Date (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Act) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Corporation representing twenty
five percent (25%) or more of the combined voting power of the Corporation's
then outstanding securities without the prior approval of at least two-thirds of
the members of the Board of Directors in office immediately prior to such person
attaining such percentage interest; (ii) the Corporation is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board of Directors in office immediately
prior to such transaction or event constitute less than a majority of the Board
of Directors thereafter; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors (including for this purpose any new director whose election or
nomination for election by the Corporation's stockholders was approved by a vote
of at least two-thirds of the directors then still in office who were directors
at the beginning of such period) cease for any reason to constitute at least a
majority of the Board of Directors.
(b) "Corporate Status" describes the status of a person who is or was a director
or officer of the Corporation or any direct or indirect subsidiary thereof or of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise which such person is or was serving at the request of the
Corporation.
(c) "Disinterested Director" means a director of the Corporation who is not and
was not a party to the Proceeding in respect of which indemnification is sought
by Indemnitee.
(d) "Effective Date" means April 22, 1993.
(e) "Expenses" shall include all reasonable attorneys' costs and fees,
investigative costs and fees, accountants costs and fees, expert witnesses'
costs and fees, retainers, court costs, transcript costs, costs, printing and
binding costs, telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, or
being or preparing to be a witness in a Proceeding.
(f) "Indemnitee" includes any person who is, or is threatened to be made, a
witness in or a party to any Proceeding as described in Sections 7.02, 7.03,
7.04 or 7.05 of this Article VII by reason of his Corporate Status and the
heirs, executors and administrators of any such person.
(g) "Independent Counsel" means a law firm, or a member of a law firm, that is
experienced in matters of corporate law and neither presently is, nor in the
past five years has been, retained to represent: (i) the Corporation or
Indemnitee in any matter material to either such party, or (ii) any other party
to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Corporation or Indemnitee in an action to determine Indemnitee's rights under
this Article VII.
(h) "Proceeding" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative.
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SECTION 7.14. NOTICES
Any notice, request or other communication required or permitted to be given to
the Corporation under this Article VII shall be in writing and either delivered
in person or sent by telex, telegram or certified or registered mail, postage
prepaid, return receipt requested, to the Secretary of the Corporation and shall
be effective only upon receipt by the Secretary.
SECTION 7.15. MISCELLANEOUS
Use of the masculine pronoun shall be deemed to include usage of the feminine
pronoun where appropriate.
SECTION 7.16. INDEMNIFICATION OF ADDITIONAL PARTIES.
In addition to the foregoing, the Corporation may, but shall not be required to,
indemnify, and advance Expenses to, any person who is, or is threatened to be
made, a witness in or party to any Proceeding as described in Sections 7.02,
7.03, 7.04 or 7.05 of this Article VII by reason of the status of such person as
an employee, agent or fiduciary of the Corporation or any direct or indirect
subsidiary thereof or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which such person is or was
serving at the request of the Corporation, provided, however, that no such
person shall be entitled to indemnification by virtue of this Section 7.16
unless such indemnification is authorized by action of the Board of Directors.
ARTICLE VIII
General Provisions
SECTION 8.01. DIVIDENDS
Dividends upon the capital stock of the Corporation, subject to the provisions
of the Articles of Incorporation, if any, may be declared by the Board of
Directors at any regular or special meeting, pursuant to law. Dividends may be
paid in cash, in property or in shares of the capital stock of the Corporation,
subject to the provisions of the Articles of Incorporation. Before payment of
any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, thinks proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purposes as the Board of
Directors shall think conducive to the interests of the Corporation, and the
Board of Directors may modify or abolish any such reserve in the manner in which
it was created.
The Corporation or other person paying any dividend or issuing any right on
behalf of the Corporation shall be entitled to withhold therefrom any taxes
required to be withheld by the laws and regulations of any taxing authority
having jurisdiction in the circumstances.
SECTION 8.02. CONTRACTS
Except as otherwise provided in these By-Laws, the Board of Directors may
authorize any officer or officers or any agent or agents, to enter into any
contract or to execute or deliver any instrument on behalf of the Corporation
and such authority may be general or confined to specific instances.
SECTION 8.03. CHEQUES AND DEPOSITS
All funds of the Corporation shall be deposited from time to time to the credit
of the Corporation in such banks, trust companies, or other depositories as the
Board of Directors may approve or designate, and all such funds shall be
withdrawn only upon cheques signed by such one or more officers, employees or
agents of the Corporation as the Board of Directors shall from time to time
determine. All notes, bills of exchange or other
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orders in writing shall be signed by such person or persons as the Board of
Directors may from time to time designate.
SECTION 8.04. CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization and the words "Corporate Seal, Liberia". The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
otherwise reproduced.
SECTION 8.05. CORPORATE RECORDS
Every Shareholder shall, upon written demand stating the purpose thereof, have a
right to inspect, in person or by agent or attorney, during the usual hours of
business, for a purpose reasonably related to his interests as a Shareholder,
the share register, books of account, and minutes of all proceedings, and make
copies or extracts therefrom.
SECTION 8.06. AMENDMENT OF BY-LAWS
These By-Laws may be altered, amended or repealed and new By-Laws may be
adopted, by the Board of Directors as provided in these By-Laws and the Articles
of Incorporation, including Article SEVENTH thereof.
SECTION 8.07. EFFECTIVE DATE
Any amendment to or any amendment and restatement of these By-Laws shall govern
the affairs of the Corporation from and after the date stated in the resolution
adopting the same.
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