Attached files
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8-K - FORM 8-K - Energy XXI Ltd | form8_k.htm |
EX-99.1 - EXHIBIT 99.1 - Energy XXI Ltd | exhibit99_1.htm |
B
Y E - L A W S
of
Energy
XXI (Bermuda) Limited
INTERPRETATION
1.
|
Interpretation
|
1.1
|
In
these Bye-Laws, unless the context otherwise
requires:
|
“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;
“Clear Days” means, in relation
to the period of a notice, that period excluding the day on which the notice is
given or served, or deemed to be given or served, and the day for which it is
given or on which it is to take effect;
“the Companies Acts” means
every Bermuda statute from time to time in force concerning companies insofar as
the same applies to the Company;
“Common Shares” shall have the
meaning set out in Bye-Law 3.2;
“Company” means the company
incorporated in Bermuda under the name of Energy XXI Acquisition Corporation
(Bermuda) Limited on 25 July, 2005 and changed its name to Energy XXI (Bermuda)
Limited on 31 March, 2006;
“Depository Interest” means a
dematerialised depository receipt representing the underlying share in the
capital of the Company to be issued by an independent third party to be
nominated by the Company;
“Director” means such person or
persons as shall be appointed to the Board from time to time pursuant to these
Bye-Laws;
“Indemnified Person” means any
Director, Officer, Resident Representative, member of a committee duly
constituted under these Bye-Laws and any liquidator, manager or trustee for the
time being acting in relation to the affairs of the Company, and his heirs,
executors and administrators;
“Officer” means a person
appointed by the Board pursuant to 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 and, except in Bye-Law 10, includes any branch
register;
“Registered Office” means the
registered office for the time being of the Company;
“Regulations” means the UK
Uncertificated Securities Regulations 2001 as amended;
“Relevant System” has the
meaning given in the Regulations;
“Resident Representative” means
(if any) the individual (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 adopted either in general meeting or by written resolution in
accordance with the provisions of these Bye-Laws;
“Seal” means the common seal of
the Company and includes any authorised duplicate thereof;
“Secretary” includes a joint,
temporary, assistant or deputy Secretary and any person appointed by the Board
to perform any of the duties of the Secretary;
“Share” means Share in the
capital of the Company and includes a fraction of a Share;
“Shareholder” means a
Shareholder or member of the Company, provided that for the purposes of Bye-Law
45 it shall also include any holder of notes, debentures or bonds issued by the
Company;
“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” and “Holding
Company” have the same meanings as in section 86 of the Companies Act 1981,
except that references in that section to a company shall include any body
corporate or other legal entity, whether incorporated or established in Bermuda
or elsewhere;
“these Bye-Laws” means these
Bye-Laws in their present form or as from time to time amended; and
1.2
|
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.
|
1.3
|
Words
importing only the singular number include the plural number and vice
versa.
|
1.4
|
Words
importing only the masculine gender include the feminine and neuter
genders respectively.
|
1.5
|
Words
importing persons include companies or associations or bodies of persons,
whether corporate or
un-incorporate.
|
1.6
|
A
reference to writing shall include typewriting, printing, lithography,
photography and other modes of representing or reproducing words in a
legible and non-transitory form.
|
1.7
|
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).
|
1.8
|
References
to Shares with the general right to vote at general meetings of the
Company are to those Shares (of any class or series) with the right to
vote, other than Shares which entitle the holders to vote only in limited
circumstances or upon the occurrence of a specified event or condition
(whether or not those circumstances have arisen or that event or condition
has occurred).
|
1.9
|
References
to ‘days’ in these Bye-Laws when in relation to notice or limitation
periods, deemed delivery, adjournments or Record Dates, shall mean ‘Clear
Days’.
|
1.10
|
A
reference to anything being done by electronic means includes its being
done by means of any electronic or other communications equipment or
facilities and reference to any communication being delivered or received,
or being delivered or received at a particular place, includes the
transmission of an electronic or similar communication, and to a recipient
identified in such manner or by such means as the Board may from time to
time approve or prescribe, either generally or for a particular
purpose.
|
1.11
|
A
reference to a signature or to anything being signed or executed include
such forms of electronic signature or other means of verifying the
authenticity of an electronic or similar communication as the Board may
from time to time approve or prescribe, either generally or for a
particular purpose.
|
1.12
|
A
reference to any statute or statutory provision (whether in Bermuda or
elsewhere) includes a reference to any modification or re-enactment of it
for the time being in force and to every rule, regulation or order made
under it (or under any such modification or re-enactment) and for the time
being in force and any reference to any rule, regulation or order made
under any such statute or statutory provision includes a reference to any
modification or replacement of such rule, regulation or order for the time
being in force.
|
1.13
|
In
these Bye-Laws:
|
1.13.1
|
powers
of delegation shall not be restrictively construed but the widest
interpretation shall be given
thereto;
|
1.13.2
|
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;
|
1.13.3
|
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
|
1.13.4
|
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.
|
Registered
Office
|
The
Registered Office shall be at such place in Bermuda as the Board shall from time
to time determine. The Company may establish such other principal
places of business as the Board may from time to time determine.
SHARES
AND SHARE RIGHTS
3.
|
Share
Capital
|
3.1
|
The
authorised Share capital of the Company at the date of adoption of these
Bye-Laws is $1,002,500.00 divided into 200,000,000.00 Common Shares of par
value $0.005 each and 2,500,000.00 Preference Shares of par value $0.001
each. The Shareholders shall have limited
liability.
|
3.2
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Common
Shares
|
The
Common Shares shall, subject to the other provisions of these Bye-Laws, entitle
the holders thereof to the following rights:
3.2.1
|
as
regards dividend:
|
after
making all necessary provisions, where relevant, for payment of any preferred
dividend in respect of any preference Shares in the Company then outstanding,
the Company shall apply any profits or reserves which the Board resolves to
distribute in paying such profits or reserves to the holder of the Common Shares
in respect of their holding of such Shares pari passu and pro rata to the number
of Common Shares held by each of them;
3.2.2
|
as
regards capital:
|
on a
return of assets on liquidation, reduction of capital or otherwise, the holders
of the Common Shares shall be entitled to be paid the surplus assets of the
Company remaining after payment of its liabilities (subject to the rights of
holders of any preferred Shares in the Company then in issue having preferred
rights on the return of capital) in respect of their holdings of Common Shares
pari passu and pro rata to the number of Common Shares held by each of
them;
3.2.3
|
as
regards voting in general meetings:
|
the
holders of the Common Shares shall be entitled to receive notice of, and to
attend and vote at, general meetings of the Company; every holder of Common
Shares present in person or by proxy shall on a poll have one vote for each
Common Share held by him.
3.3
|
Without
limiting the foregoing and subject to the Companies Acts, the Company may
issue preference Shares (including any preference Shares created pursuant
to this Bye-Law 3.3) which:
|
3.3.1
|
are
liable to be redeemed on the happening of a specified event or events or
on a given date or dates and/or;
|
3.3.2
|
are
liable to be redeemed at the option of the Company and/or, if authorised
by the Memorandum of Association of the Company, at the option of the
holder.
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3.4
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The
terms and manner of the redemption of any redeemable Shares created
pursuant to Bye-Law 3.3 shall be as the Board may by resolution determine
before the allotment of such Shares and the terms and manner of redemption
of any other redeemable preference Shares shall be
either:
|
3.4.1
|
as
the Shareholders may by Resolution determine; or
|
3.4.2
|
insofar
as the Shareholders do not by any Resolution determine, as the Board may
by resolution determine, in either case, before the allotment of such
Shares. A copy of any such Resolution or resolution of the
Board for the time being in force shall be attached as an appendix to (but
shall not form part of) these
Bye-Laws.
|
3.5
|
The
terms of any redeemable preference Shares (including any redeemable
preference Shares created pursuant to Bye-Law 3.3) may provide for the
whole or any part of the amount due on redemption to be paid or satisfied
otherwise than in cash, to the extent permitted by the Companies Acts.
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3.6
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No
holder of Shares of any class or other securities of the Company shall as
such holder have any pre-emptive right to purchase Shares of any class or
other securities of the Company or Shares or other securities convertible
into or exchangeable for or carrying rights or options to purchase Shares
of any class of the Company, whether such Shares or other securities are
now or hereafter authorised, which at any time may be proposed to be
issued by the Company or subjected to rights or options to purchase
granted by the Company
|
3.7
|
Subject
to the foregoing and 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.
|
3.8
|
The
Board may, at its discretion and without the sanction of a Resolution,
authorise the acquisition by the Company of its own Shares, of any class,
at any price (whether at par or above or below par), and any Shares to be
so purchased may be selected in any manner whatsoever, to be held as
treasury Shares, upon such terms as the Board may in its discretion
determine, provided always that such acquisition is effected in accordance
with the provisions of the Companies Acts. The whole or any part of the
amount payable on any such acquisition may be paid or satisfied otherwise
than in cash, to the extent permitted by the Companies Acts. The Company
shall be entered in the Register as a Shareholder in respect of the Shares
held by the Company as treasury Shares and shall be a Shareholder of the
Company but subject always to the provisions of the Companies Acts and for
the avoidance of doubt the Company shall not exercise any rights and shall
not enjoy or participate in any of the rights attaching to those Shares
save as expressly provided for in the Companies
Act.
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4.
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Modification
of Rights
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4.1
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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 (75%) of the issued Shares of that class or with the
sanction of a Resolution passed by a simple majority of votes cast 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 (2)
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.
|
4.2
|
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 not be deemed to be
altered by:
|
4.2.1
|
the
creation or issue of further Shares ranking pari passu with them;
|
4.2.2
|
the
creation or issue for full value (as determined by the Board) of further
Shares ranking as regards participation in the profits or assets of the
Company or otherwise in priority to them; or
|
4.2.3
|
the
purchase or redemption by the Company of any of its own
Shares.
|
5.
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Shares
|
5.1
|
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.
|
5.2
|
Subject
to the provisions of these Bye-Laws, any Shares of the Company held by the
Company as treasury Shares shall be at the disposal of the Board, which
may hold all or any of the Shares, dispose of or transfer all or any of
the Shares for cash or other consideration, or cancel all or any of the
Shares.
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5.3
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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, options on Shares and warrants, or partly in one way
and partly in the other.
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5.4
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Shares
may be issued in fractional denominations and in such event the Company
shall deal with such fractions to the same extent as its whole Shares, so
that a Share in a fractional denomination shall have, in proportion to the
fraction of a whole Share that it represents, all the rights of a whole
Share, including (but without limiting the generality of the foregoing)
the right to vote, to receive dividends and distributions and to
participate in a winding-up.
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5.5
|
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 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.
|
6.
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Certificates
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6.1
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Share
certificates may be issued by the Company in respect of any Shares issued
by the Company. The Company may also issue certificates to the
holders of any warrants which are convertible into Shares in the
Company. Certificates for Shares of the Company shall be in
such form, not inconsistent with these Bye-laws, as shall be approved by
the Board and shall be signed by or in the name of the Company by the
Chairman or by the President or Chief Financial Officer provided that the
signatures of any such officers thereon may be facsimiles. The
seal of the Company may be impressed, by original or by facsimile, printed
or engraved, on all such certificates. A certificate may also
be signed by the transfer agent and a registrar as the Board may
determine, and in such case the signature of the transfer agent or the
registrar may also be facsimile, engraved or printed. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is
issued, it may nevertheless be issued by the Company with the same effect
as if he were such officer, transfer agent or registrar at the date of
issue.
|
6.2
|
Notwithstanding
the foregoing, at the discretion of the Board, (or the President, Chief
Financial Officer or Secretary), the Company may issue Shares in
uncertificated form upon the initial issuance of such Shares or thereafter
upon surrender of any certificates representing such Shares, for
registration in book entry accounts for shares in such form as the Boarf
or Secretary of the Company may from time to time prescribe, in addition
to or in place of Shares represented by certificates, to the extent
authorized by applicable law
|
6.3
|
If
a Share certificate is defaced, lost or destroyed, it may be replaced
without fee but on such terms (if any) as to evidence and indemnity and to
payment of the costs and out of pocket expenses of the Company in
investigating such evidence and preparing such indemnity as the Board may
think fit and, in case of defacement, on delivery of the old certificate
to the Company.
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6.4
|
Title
to and the transfer of any securities in the Company shall be evidenced by
an instrument in writing unless and until the Company’s securities become
eligible for electronic settlement on the Alternative Investment Market
(“AIM”) or other recognised exchange. The Board shall have
power to implement any arrangements which it may think fit for the
evidencing and/or transfer of title to any securities of the Company in
any manner which is permitted by the AIM rules, or the rules of any other
stock exchange on which the securities of the Company are listed, or the
Companies Act.
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7.
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Lien
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7.1.1
|
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:
|
7.1.1.1
|
the
death of such Shareholder;
|
7.1.1.2
|
the
non-payment of any income tax or other tax by such
Shareholder;
|
7.1.1.3
|
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; or any other
act or thing;
|
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):
|
7.1.1.5the
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 (15%) 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;
|
|
7.1.1.6the
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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7.2
|
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.
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8.
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Depository
Interests
|
8.1
|
The
Board may permit shares of any class to be represented by Depository
Interests and to be transferred or otherwise dealt with by means of a
Relevant System, and may revoke any such
permission.
|
8.2
|
Disapplication
of Inconsistent Bye-Laws
|
Any
provisions of these Bye-Laws shall not apply to any Depository Interests to the
extent that the provisions are inconsistent with:
8.2.1
|
the
holding of Depository Interests;
|
8.2.2
|
the
transfer of title to Depository Interests by means of a Relevant System;
or
|
8.2.3
|
the
Regulations.
|
8.3
|
Evidencing,
Issue and Transfer of Depository
Interests
|
8.3.1
|
The
Board may make such arrangements or regulations (if any) as it may from
time to time in its absolute discretion think fit in relation to the
evidencing, issue and transfer of Depository Interests and otherwise for
the purpose of implementing and/or supplementing the provisions of this
Bye-Law 8.3 and the Regulations and the facilities and requirements of the
Relevant System, and such arrangements and regulations shall have the same
effect as if set out in this Bye-Law
8.3.
|
8.3.2
|
The
Company may use the Relevant System in which any Depository Interests are
held to the fullest extent available from time to time in the exercise of
any of its powers or functions under the Companies Acts or these Bye-Laws
or otherwise in effecting any
actions.
|
8.3.3
|
For
the purpose of effecting any action by the Company, the Board may
determine that Depository Interests held by a person shall be treated as a
separate holding from Shares held by that person in certificated
form.
|
8.4
|
Not
Separate Class
|
Shares in
a particular class shall not form a separate class of shares from other shares
in that class because they are dealt with as Depository Interests.
8.5
|
Power
of Sale, Etc.
|
Where the
Company is entitled under any provision of the Regulations, the Companies Acts
or these Bye-Laws to forfeit, accept the surrender of, enforce a lien over,
sell, transfer or otherwise dispose of any share represented by a Depository
Interest, such entitlement (to the extent permitted by the Regulations and the
Companies Acts and the facilities and requirements of the Relevant System) shall
include the right:
8.5.1
|
to
require the holder of that Depository Interest, by notice in writing, to
change that share represented by the Depository Interest into a Share in
certificated form within the period specified in the notice and to hold
that Share in certificated form so long as required by the
Company.
|
8.5.2
|
to
require the holder of that Depository Interest, by notice in writing to
give any instructions necessary to transfer title to that share by means
of the Relevant System within the period specified in the
notice;
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8.5.3
|
to
require the holder of that Depository Interest, by notice in writing, to
appoint any person to take any step, including without limitation the
giving of any instruction by means of the Relevant System, necessary to
transfer that share within the period specified in the notice; and
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8.5.4
|
to
take any other action that the Board considers appropriate to achieve the
sale, transfer, disposal, forfeiture, re-allotment or surrender of that
share or to enforce a lien in respect of that
share.
|
9.
|
[Intentionally
Omitted]
|
REGISTERS
OF SHAREHOLDERS AND WARRANTHOLDERS
10.
|
Registers
Of Shareholders and Warrantholders
|
10.1
|
The
Register of Shareholders (“Register”) shall be kept 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. 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 make, amend and revoke any such regulations as it may
think fit respecting the keeping of such registers. The Board
may authorise any Share on the Register to be included in a branch
register or any Share registered on a branch register to be registered on
another branch register, provided that at all times the Register is
maintained in accordance with the Companies
Acts.
|
10.2
|
The
Register or any branch register may be closed at such times and for such
period as the Board may from time to time decide, subject to the Companies
Acts. Except during such time as it is closed, the Register and
each branch register shall be open to inspection in the manner prescribed
by the Companies Acts between 10:00 a.m. and 12:00 noon (or between such
other times as the Board from time to time determines) on every working
day. Unless the Board so determines, no Shareholder or
intending Shareholder shall be entitled to have entered in the Register or
any branch register any indication of any trust or any equitable,
contingent, future or partial interest in any Share or 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
5.4.
|
10.3
|
The
Register of Warrantholders shall be kept at the Registered Office or at
such other place in or out of Bermuda as the Board may from time to time
direct. The Company may keep one or more overseas or branch registers of
warrantholders in any place, and the Board may make, amend and revoke any
such regulations as it may think fit respecting the keeping of such
registers. The Board may authorise any warrant on the Register
of Warrantholders to be included in a branch register or any warrant
registered on a branch register to be registered on another branch
register,
|
REGISTER
OF DIRECTORS AND OFFICERS
11.
|
Register
Of Directors And Officers
|
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
12.
|
Transfer
Of Shares
|
12.1
|
Subject
to the Companies Acts, to Bye-Law 6 and to such other 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.
|
12.2
|
Subject
to Bye-Law 6, an 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. 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 and in the case of a
breach of 12.2.4, shall decline to register a transfer,
unless:
|
12.2.1
|
the
instrument of transfer is duly stamped (if required by law) 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
reasonably require to show the right of the transferor to make the
transfer,
|
12.2.2
|
the
instrument of transfer is in respect of only one class of
Share,
|
12.2.3
|
the
instrument of transfer is in favour of less than five (5) persons
jointly;
|
12.2.4
|
the
instrument of transfer is accompanied by evidence satisfactory to the
Board that all transfer restrictions on the face of any certificate in
respect of the Shares to be transferred have been complied with;
and
|
12.2.5
|
it
is satisfied that all applicable consents, including a declaration from
the transferee sufficient to satisfy the Board that the transferee will
not oblige the Shares to be registered under the US Securities Act 1933,
to the extent that the Shares are not so registered authorisations,
permissions or approvals of any governmental body or agency in Bermuda or
any other applicable jurisdiction required to be obtained under relevant
law prior to such transfer have been obtained.
|
12.3
|
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.
|
12.4
|
If
the Board declines to register a transfer it shall, within three (3)
months after the date on which the instrument of transfer was lodged, send
to the transferee notice of such
refusal.
|
12.5
|
A
fee to be determined by the Board shall be charged by the Company for
registering any transfer, probate, letters of administration, certificate
of death or marriage, power of attorney, 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, (except that the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed on it in connection with such
transfer or entry).
|
TRANSMISSION
OF SHARES
13.
|
Transmission
of Shares
|
13.1
|
In
the case of the death of a Shareholder, the survivor or survivors, where
the deceased was a joint holder, and the estate representative, where he
was sole holder, shall be the only person recognised by the Company as
having any title to his Shares; but nothing herein contained shall release
the estate of a deceased holder (whether the sole or joint) from any
liability in respect of any Share held by him solely or jointly with other
persons. For the purpose of this Bye-Law, estate representative
means the person to whom probate or letters of administration has or have
been granted in Bermuda or, failing any such person, such other person as
the Board may in its absolute discretion determine to be the person
recognised by the Company for the purpose of this
Bye-Law.
|
13.2
|
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.
|
13.3
|
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 monies payable in respect of the Share, but he
shall not be entitled in respect of the Share to receive notices of or to
attend or vote at general meetings of the Company or, save as aforesaid,
to exercise in respect of the Share any of the rights or privileges of a
Shareholder until he shall have become registered as the holder
thereof. The Board may at any time give notice requiring such
person to elect either to be registered himself or to transfer the Share
and, if the notice is not complied with within sixty (60) days, the Board
may thereafter withhold payment of all dividends and other monies payable
in respect of the Shares until the requirements of the notice have been
complied with.
|
13.4
|
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.
|
SHARE
CAPITAL
14.
|
Increase
Of Capital
|
14.1
|
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.
|
14.2
|
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.
|
14.3
|
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.
|
15.
|
Alteration
Of Capital
|
15.1
|
The
Company may from time to time by
Resolution:
|
15.1.1
|
divide
its Shares into several classes and attach thereto respectively any
preferential, deferred, qualified or special rights, privileges or
conditions;
|
15.1.2
|
consolidate
and divide all or any of its Share capital into Shares of larger or
smaller par value than its existing
Shares;
|
15.1.3
|
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;
|
15.1.4
|
make
provision for the issue and allotment of Shares which do not carry any
voting rights;
|
15.1.5
|
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
|
15.1.6
|
change
the currency denomination of its Share
capital.
|
15.2
|
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.
|
15.3
|
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.
|
16.
|
Reduction
Of Capital
|
16.1
|
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 account in any
manner.
|
16.2
|
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
17.
|
General
Meetings And Written Resolutions
|
17.1
|
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, at such time and place as the Board may
appoint.
|
17.2
|
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 or not a company
within the meaning of the Companies Acts) by its representative 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.
|
17.3
|
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 Bye-Law, a reference to such
date.
|
17.4
|
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 Bye-Law shall constitute minutes for the purposes of the Companies
Acts and these Bye-Laws.
|
18.
|
Notice
Of General Meetings
|
18.1
|
An
Annual General Meeting shall be called by not more than 60 and not less
than 10 days notice in writing and a Special General Meeting shall be
called by not more than 60 and not less than 10 days notice in
writing. The notice shall specify the place, day and time of
the meeting, (including any satellite meeting place arranged for the
purposes of Bye-Law 19) and, the nature of the business to be
considered. Notice of every general meeting shall be given in
any manner permitted by these Bye-Laws 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 which has
delivered a written notice upon the Registered Office requiring that such
notice be sent to him or it.
|
18.2
|
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.
|
18.3
|
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.
|
18.4
|
The
Board may cancel or postpone a meeting of the Shareholders after it has
been convened and notice of such cancellation or postponement shall be
served in accordance with these Bye-Laws upon all Shareholders entitled to
notice of the meeting so cancelled or postponed setting out, where the
meeting is postponed to a specific date, notice of the new meeting in
accordance with this Bye-Law.
|
19.
|
General
Meetings At More Than One Place
|
19.1
|
The
provisions of this Bye-Law shall apply if any general meeting is convened
at or adjourned to more than one
place.
|
19.2
|
The
notice of any meeting or adjourned meeting may specify the Specified Place
and the Board shall make arrangements for simultaneous attendance and
participation in a satellite meeting at other places (whether adjoining
the Specified Place or in a different and separate place or places
altogether or otherwise) by Shareholders. The Shareholders
present at any such satellite meeting place in person or by proxy and
entitled to vote shall be counted in the quorum for, and shall be entitled
to vote at, the general meeting in question if the chairman of the general
meeting is satisfied that adequate facilities are available throughout the
general meeting to ensure that Shareholders attending at all the meeting
places are able to:
|
19.2.1
|
communicate
simultaneously and instantaneously with the persons present at the other
meeting place or places, whether by use of microphones, loud-speakers,
audio-visual or other communications equipment or facilities;
and
|
19.2.2
|
have
access to all documents which are required by the Companies Acts and these
Bye-Laws to be made available at the
meeting.
|
19.3
|
The
chairman of the general meeting shall be present at, and the meeting shall
be deemed to take place at, the Specified Place. If it appears
to the chairman of the general meeting that the facilities at the
Specified Place or any satellite meeting place are or become inadequate
for the purposes referred to above, then the chairman may, without the
consent of the meeting, interrupt or adjourn the general
meeting. All business conducted at that general meeting up to
the time of such adjournment shall be
valid.
|
19.4
|
The
Board may from time to time make such arrangements for the purpose of
controlling the level of attendance at any such satellite meeting (whether
involving the issue of tickets or the imposition of some 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.
|
19.5
|
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
18.
|
20.
|
Proceedings
At General Meetings
|
20.1
|
In
accordance with the Companies Acts, a general meeting may be held with
only one individual present provided that the requirement for a quorum is
satisfied. 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 (2) Shareholders present in person or by proxy and entitled to vote
representing the holders of not less than 33 and 1/3 % of the issued
Shares entitled to vote at such meeting shall be a quorum for all
purposes; 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.
|
20.2
|
If
within five (5) minutes (or such longer time as the chairman of the
meeting may determine to wait) after the time appointed for the meeting, a
quorum is not present, the meeting, if convened on the requisition of
Shareholders, shall be dissolved. In any other case, it shall
stand adjourned to such other day and such other time and place as the
chairman of the meeting may determine and at such adjourned meeting two
(2) Shareholders present in person or by proxy and entitled to vote and
representing the holders of not less than 33 and 1/3% of the issued Shares
entitled to vote at such meeting shall be a quorum, provided 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. The Company shall give not less than 5 Clear 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 (2)
Shareholders present in person or by proxy and entitled to vote and
representing the holders of not less than 33 and 1/3% of the issued Shares
entitled to vote at such meeting shall be a quorum. If at the
adjourned meeting a quorum is not present within fifteen (15) minutes
after the time appointed for holding the meeting, the meeting shall be
dissolved.
|
20.3
|
A
meeting of the Shareholders or any class thereof may be held by means of
such telephone, electronic or other communication facilities (including,
without limiting the generality of the foregoing, by telephone, or by
video conferencing) 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. If it appears to the chairman of a general
meeting that the Specified Place is inadequate to accommodate all persons
entitled and wishing to attend, the meeting is duly constituted and its
proceedings are valid if the chairman is satisfied that adequate
facilities are available, whether at the Specified Place or elsewhere, to
ensure that each such person who is unable to be accommodated at the
Specified Place is able to communicate simultaneously and instantaneously
with the persons present at the Specified Place, whether by the use of
microphones, loud-speakers, audio-visual or other communications equipment
or facilities.
|
20.4
|
Subject
to the Companies Acts, a Resolution may only be put to a vote at a general
meeting of the Company or of any class of Shareholders
if:
|
20.4.1
|
it
is proposed by or at the direction of the Board;
or
|
20.4.2
|
it
is proposed at the direction of the Court;
or
|
20.4.3
|
it
is proposed on the requisition in writing of such number of Shareholders
as is prescribed by, and is made in accordance with, the relevant
provisions of the Companies Acts;
|
20.4.4
|
with
respect to an annual general meeting, (and for greater certainty, the
process set out in Bye-Law 20A shall not be available in respect of a
special general meeting), it has been presented by a Shareholder of record
on the date for giving notice for such meeting in accordance with Bye-Law
20A; or
|
20.4.5
|
the
chairman of the meeting in his absolute discretion decides that the
Resolution may properly be regarded as within the scope of the
meeting.
|
20.5
|
No
amendment may be made to a Resolution, at or before the time when it is
put to a vote, unless the chairman of the meeting in his absolute
discretion decides that the amendment or the amended Resolution may
properly be put to a vote at that
meeting.
|
20.6
|
If
the chairman of the meeting rules a Resolution or an amendment to a
Resolution admissible or out of order (as the case may be), the
proceedings of the meeting or on the Resolution in question shall not be
invalidated by any error in his ruling. Any ruling by the
chairman of the meeting in relation to a Resolution or an amendment to a
Resolution shall be final and
conclusive.
|
20.7
|
The
Resident Representative, if any, upon giving the notice referred to in
Bye-Law 18.1 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.
|
20.8
|
The
Chairman (or President) or, in his absence, the Deputy Chairman (or
Vice-President), shall preside as chairman at every general
meeting. If there is no such Chairman or Deputy Chairman (or
President or Vice-President), or if at any meeting the Chairman or Deputy
Chairman (or the President or Vice-President) is not present within five
(5) minutes after the time appointed for holding the meeting, or is not
willing to act as chairman, the Directors present shall choose one of
their number to act or if only one Director is present he shall preside as
chairman if willing to act. If no Director is present, or if
each of the Directors present declines to take the chair, the persons
present and entitled to vote on a poll shall elect one of their number to
be chairman.
|
20.9
|
The
chairman of the meeting may, with the consent by Resolution of any meeting
at which a quorum is present (and shall if so directed by the meeting),
adjourn the meeting from time to time (or sine die) 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 to any other power of
adjournment conferred by law, the chairman of the meeting may at any time
without consent of the meeting adjourn the meeting (whether or not it has
commenced or a quorum is present) to another time and/or place (or sine
die) if, in his opinion, it would facilitate the conduct of the business
of the meeting to do so or if he is so directed (prior to or at the
meeting) by the Board. When a meeting is adjourned sine die,
the time and place for the adjourned meeting shall be fixed by the Board.
When a meeting is adjourned for three (3) months or more or for an
indefinite period, at least 5 Clear Days’ notice shall be given of the
adjourned meeting. 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.
|
20AShareholder Proposals
20A.1.
|
In
addition to any other applicable requirements, for business to be properly
brought before an annual general meeting by a Shareholder, such
Shareholder must have given timely notice thereof in proper written form
to the Secretary of the Company as provided in this Bye-Law
20A.
|
20A.2.
|
To
be timely, a Shareholder’s notice to the Secretary must be delivered to or
mailed and received at the Registered Office and the principal executive
offices of the Company as set forth in the Company’s filings with the
Securities and Exchange Commission not less than sixty (60) days nor more
than ninety (90) days prior to the anniversary date of the immediately
preceding annual general meeting of Shareholders; provided, however, that
in the event that the annual general meeting is called for a date that is
not within thirty (30) days before or after such anniversary date, notice
by the Shareholder in order to be timely must be so received not later
than the close of business on the tenth (10th) day following the day on
which such notice of the date of the annual general meeting was mailed or
such public disclosure of the date of the annual general meeting was made,
whichever first occurs.
|
20A.3.
|
To
be in proper written form, a Shareholder’s notice to the Secretary must
set forth as to each matter such Shareholder proposes to bring before the
annual general meeting (i) a brief description of the business desired to
be brought before the annual general meeting and the reasons for
conducting such business at the annual general meeting, (ii) the name and
record address of such Shareholder, (iii) the class or series and number
of Shares of the Company which are owned beneficially or of record by such
Shareholder, (iv) a description of all arrangements or understandings
between such Shareholder and any other person or persons (including their
names) in connection with the proposal of such business by such
Shareholder and any material interest of such Shareholder in such business
and (v) a representation that such Shareholder intends to appear in person
or by proxy at the annual general meeting to bring such business before
the meeting.
|
20A.4.
|
No
business shall be conducted at the annual general meeting of Shareholders
except business brought before the annual general meeting in accordance
with the procedures set forth in this Bye-law; provided, however, that,
once business has been properly brought before the annual general meeting
in accordance with such procedures, nothing in this Bye-law shall be
deemed to preclude discussion by any Shareholder of any such
business. If the Chairman of an annual general meeting
determines that business was not properly brought before the annual
general meeting in accordance with the foregoing procedures, the Chairman
shall declare to the meeting that the business was not properly brought
before the meeting and such business shall not be
transacted.
|
21.
|
Voting
|
21.1
|
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.
|
21.2
|
Subject
to Bye-Law 38.2 and to any rights or restrictions attached to any class of
Shares, at any meeting of the Company, each Shareholder present in person
shall be entitled to one vote on any question to be decided on a show of
hands and each Shareholder present in person or by proxy shall be entitled
on a poll to one vote for each Share held by him.
|
21.3
|
At
any general meeting, a Resolution put to the vote of the meeting shall be
decided on a show of hands unless (before or on the declaration of the
result of the show of hands or on the withdrawal of any other demand for a
poll) a poll is demanded by:
|
21.3.1
|
the
chairman of the meeting; or
|
21.3.2
|
at
least three (3) Shareholders present in person or represented by proxy;
or
|
21.3.3
|
any
Shareholder or Shareholders present in person or represented by proxy and
holding between them not less than one tenth (1/10) of the total voting
rights of all the Shareholders having the right to vote at such meeting;
or
|
21.3.4
|
a
Shareholder or Shareholders present in person or represented by proxy
holding Shares conferring the right to vote at such meeting, being Shares
on which an aggregate sum has been paid up equal to not less than one
tenth (1/10) of the total sum paid up on all such Shares conferring such
right.
|
The
demand for a poll may, before the poll is taken, be withdrawn but only with the
consent of the chairman and a demand so withdrawn shall not be taken to have
invalidated the result of a show of hands declared before the demand was
made. If the demand for a poll is withdrawn, the chairman or any
other Shareholder entitled may demand a poll.
21.4
|
Unless
a poll is so demanded and the demand is not withdrawn, a declaration by
the chairman that a Resolution has, on a show of hands, been carried or
carried unanimously or by a particular majority or not carried by a
particular majority or lost shall be final and conclusive, and an entry to
that effect in the minute book of the Company shall be conclusive evidence
of the fact without proof of the number or proportion of votes recorded
for or against such Resolution.
|
21.5
|
If
a poll is duly demanded, the result of the poll shall be deemed to be the
Resolution of the meeting at which the poll is
demanded.
|
21.6
|
A
poll demanded on the election of a chairman, or on a question of
adjournment, shall be taken forthwith. A poll demanded on any
other question shall be taken in such manner and either forthwith or at
such time (being not later than three (3) months after the date of the
demand) 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.
|
21.7
|
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.
|
21.8
|
On
a poll, votes may be cast either personally or by
proxy.
|
21.9
|
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.
|
21.10
|
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.
|
21.11
|
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.
|
21.12
|
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.
|
21.13
|
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.
|
21.14
|
If:
|
21.14.1
|
any
objection shall be raised to the qualification of any voter;
or,
|
21.14.2
|
any
votes have been counted which ought not to have been counted or which
might have been rejected; or,
|
21.14.3
|
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.
22.
|
Proxies
And Corporate Representatives
|
22.1
|
A
Shareholder may appoint one or more persons as his proxy, with or without
the power of substitution, to represent him and vote on his behalf in
respect of all or some only of his Shares at any general meeting
(including an adjourned meeting). A proxy need not be a
Shareholder. The instrument appointing a proxy shall be in
writing executed by the appointor or his attorney authorised by him in
writing or, if the appointor is a corporation, either under its seal or
executed by an officer, attorney or other person authorised to sign the
same.
|
22.2
|
A
Shareholder which is a corporation may, by written authorisation, appoint
any person (or two (2) or more persons in the alternative) as its
representative to represent it and vote on its behalf at any general
meeting (including an adjourned meeting) and such a corporate
representative may exercise the same powers on behalf of the corporation
which he represents as that corporation could exercise if it were an
individual Shareholder and the Shareholder 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.
|
22.3
|
Any
Shareholder may appoint a proxy or (if a corporation) representative for a
specific general meeting, and adjournments thereof, or may appoint a
standing proxy or (if a corporation) representative, by serving on the
Company 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. Any standing proxy or authorisation shall be
valid for all general meetings and adjournments thereof or Resolutions in
writing, as the case may be, until notice of revocation is received at the
Registered Office 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 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.
|
22.4
|
Subject
to Bye-Law 22.3, the instrument appointing a proxy or corporate
representative 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 48 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 or
authorisation shall not be treated as
valid.
|
22.5
|
Instruments
of proxy or authorisation 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 or authorisation 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, to speak
at the meeting 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 or authorisation 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. If the
terms of the appointment of a proxy include a power of substitution, any
proxy appointed by substitution under such power shall be deemed to be the
proxy of the Shareholder who conferred such power. All the
provisions of these Bye-Laws relating to the execution and delivery of an
instrument or other form of communication appointing or evidencing the
appointment of a proxy shall apply, mutatis mutandis, to the instrument or
other form of communication effecting or evidencing such an appointment by
substitution.
|
22.6
|
A
vote given in accordance with the terms of an instrument of proxy or
authorisation shall be valid notwithstanding the previous death or
unsoundness of mind of the principal, or revocation of the instrument of
proxy or of the corporate authority, provided that no intimation in
writing of such death, unsoundness of mind 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 or authorisation
in the notice convening the meeting or other documents sent therewith) at
least one hour 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 or
authorisation is used.
|
22.7
|
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, speak and vote on behalf of any
Shareholder at general meetings or to sign written
Resolutions.
|
BOARD
OF DIRECTORS
23.
|
Appointment
And Removal Of Directors
|
23.1
|
At
the point of adoption of these Bye-Laws on 13 October 2005 the
Board consists of the following
persons:
|
John
Daniel Schiller, Jr.
Steven
Albert Weyel
David
West Griffin
David
Morris Dunwoody
William
Colvin
23.2
|
David
West Griffin is designated as a class I Director, Steven Albert Weyel and
David Morris Dunwoody are designated as class II Directors and John Daniel
Schiller, Jr. and William Colvin are designated as class III Directors for
the purposes of these Bye-Laws. There is no distinction in the
voting or other powers and authorities of Directors of different classes;
the classifications are solely for the purposes of the retirement by
rotation provisions set out in Bye-Laws 23.4, 23.5 and
23.6. All Directors will be designated as either class I, class
II or class III Directors. The Board shall from time to time by resolution
determine the respective numbers of class I Directors, class II Directors
and class III Directors.
|
23.3
|
Upon
resignation or termination of office of any Director, if a new Director
shall be appointed to the Board he will be designated to fill the vacancy
arising and shall, for the purposes of these Bye-Laws, constitute a member
of the class of Directors represented by the person that he
replaces.
|
23.4
|
Each
class I Director shall (unless his office is vacated in accordance with
these Bye-Laws) serve initially until the conclusion of the Annual General
Meeting of the Company held in the calendar year 2006 and subsequently
shall (unless his office is vacated in accordance with these Bye-Laws)
serve for three-year terms, each concluding at the third Annual General
Meeting after the class I Directors together were last appointed or
re-appointed.
|
23.5
|
Each
class II Director shall (unless his office is vacated in accordance with
these Bye-Laws) serve initially until the conclusion of the Annual General
Meeting of the Company held in the calendar year 2007 and subsequently
shall (unless his office is vacated in accordance with these Bye-Laws)
serve for three-year terms, each concluding at the third Annual General
Meeting after the class II Directors together were last appointed or
re-appointed.
|
23.6
|
Each
class III Director shall (unless his office is vacated in accordance with
these Bye-Laws) serve initially until the conclusion of the Annual General
Meeting of the Company held in the calendar year 2008 and subsequently
shall (unless his office is vacated in accordance with these Bye-Laws)
serve for three-year terms, each concluding at the third Annual General
Meeting after the class III Directors together were last appointed or
re-appointed.
|
23.7
|
Any
Director retiring at an Annual General Meeting will be eligible for
re-appointment and will retain office until the close of the meeting at
which he retires or (if earlier) until a Resolution is passed at that
meeting not to fill the vacancy or the Resolution to re-appoint him is put
to a vote at the meeting and is
lost.
|
23.8
|
If
the Company, at the meeting at which a Director (of any class) retires by
rotation or otherwise, does not fill the vacancy, the retiring Director
shall, if willing to act, be deemed to have been re-appointed unless at
the meeting it is resolved not to fill the vacancy or unless a Resolution
for the re-appointment of the Director is put to the meeting and
lost.
|
23.9
|
No
person other than a Director retiring by rotation shall be appointed a
Director at any general meeting
unless:
|
23.9.1
|
he
is recommended by the Board; or
|
23.9.2
|
in
the case of an Annual General Meeting, not less than one hundred twenty
(120) nor more than one hundred fifty (150) days before the date of the
Company’s proxy statement released to Shareholders in connection with the
prior year’s Annual General Meeting, a notice executed by a Shareholder
(not being the person to be proposed) has been received by the Secretary
of the Company of the intention to propose such person for appointment,
setting forth as to each person whom the Shareholder proposes to nominate
for election or re-election as a
Director:
|
23.9.2.1
|
the
name, age, business address and residence address of such
person;
|
23.9.2.2
|
the
principal occupation or employment of such
person;
|
23.9.2.3
|
the
class, series and number of Shares of the Company which are beneficially
owned by such person;
|
23.9.2.4
|
particulars
which would, if he were so appointed, be required to be included in the
Company’s register of Directors and Officers;
|
23.9.2.5
|
a
letter from such person indicating that they are willing to be considered
for election as a Director; and
|
23.9.2.6
|
all
other information relating to such 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), together with notice executed by such person of his
willingness to serve as a Director if so elected; provided, however, that
no Shareholder shall be entitled to propose any person to be appointed,
elected or re-elected Director at any special general
meeting.
|
23.10
|
Except
as otherwise authorised by the Companies Acts, the appointment of any
person proposed as a Director shall be effected by a separate
Resolution. Subject to Bye-Law 23.3, the Resolution appointing
any Director must designate the Director as a class I, class II or class
III Director.
|
23.11
|
All
Directors, upon election or appointment, except upon re-election or
re-appointment 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 (30) days of
their appointment.
|
23.12
|
The
number of Directors shall be not less than three (3) and may be more as
the Board by Resolution may from time to time determine. Any
one or more vacancies in the Board not filled at any general meeting 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, subject to Bye-Laws 23.1, 23,2 and 23.3, 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 and
shall not be taken into account in determining the Directors who are to
retire by rotation at the meeting. If not reappointed at such
Annual General Meeting, he shall vacate office at the conclusion
thereof.
|
24.
|
Resignation
And Disqualification Of Directors
|
24.1
|
The
office of a Director shall be vacated upon the happening of any of the
following events:
|
24.1.1
|
if
he resigns his office by notice in writing delivered to the Registered
Office or tendered at a meeting of the
Board;
|
24.1.2
|
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;
|
24.1.3
|
if
he becomes bankrupt under the laws of any country or compounds with his
creditors;
|
24.1.4
|
if
he is prohibited by law from being a
Director;
|
24.1.5
|
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;
and
|
24.1.6
|
if
he shall for more than six (6) 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.
|
24.2
|
The
provisions of section 93 of the Companies Act 1981 of Bermuda shall not
apply to the Company.
|
25.
|
Alternate
Directors
|
25.1
|
Any
Director (other than an Alternate Director) may appoint 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 delivery of a written notice of appointment
or removal to the Secretary at the Registered Office, signed by such
Director, and such notice shall be effective immediately upon receipt or
on any later date specified in that notice. 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.
|
25.2
|
An
Alternate Director shall cease to be an Alternate
Director:
|
25.2.1
|
if
his appointor ceases to be a Director; but, if a Director retires by
rotation or otherwise 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;
|
25.2.2
|
on
the happening of any event which, if he were a Director, would cause him
to vacate his office as Director;
|
25.2.3
|
if
he is removed from office pursuant to Bye-Law 25.1;
or
|
25.2.4
|
if
he resigns his office by notice to the
Company.
|
25.3
|
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.
|
25.4
|
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.
|
26.
|
Directors’
Interests
|
26.1
|
A
Director may hold any other office or place of profit with the Company
(except that of auditor) in conjunction with his office of Director for
such period and upon such terms as the Board may determine, and may be
paid such extra remuneration therefor (whether by way of salary,
commission, participation in profits or otherwise) as the Board may
determine, and such extra remuneration shall be in addition to any
remuneration provided for by or pursuant to any other
Bye-Law.
|
26.2
|
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.
|
26.3
|
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.
|
26.4
|
So
long as, where it is necessary, he declares the nature of his interest at
the first opportunity at a meeting of the Board or by writing to the
Directors as required by the Companies Acts, a Director shall not by
reason of his office be accountable to the Company for any benefit which
he derives from any office or employment to which these Bye-Laws allow him
to be appointed or from any transaction or arrangement in which these
Bye-Laws allow him to be interested, and no such transaction or
arrangement shall be liable to be avoided on the ground of any interest or
benefit.
|
26.5
|
A
Director who has disclosed his interest in a transaction or arrangement
with the Company, or in which the Company is otherwise interested, may be
counted in the quorum and vote at any meeting at which such transaction or
arrangement is considered by the
Board.
|
26.6
|
Subject
to the Companies Acts and any further disclosure required thereby, a
general notice to the Directors by a Director or Officer declaring that he
is a director or officer or has an interest in a person and is to be
regarded as interested in any transaction or arrangement made with that
person, shall be a sufficient declaration of interest in relation to any
transaction or arrangement so made.
|
26.7
|
For
the purposes of these Bye-Laws, without limiting the generality of the
foregoing, a Director is deemed to have an interest in a transaction or
arrangement with the Company if he is the holder of or beneficially
interested in 10% per cent or more of any class of the equity Share
capital of any 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 with which the Company is proposing to enter
into a transaction or arrangement, provided that there shall be
disregarded any Shares held by such 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 this
Bye-Law, an interest of a person who is connected with a Director shall be
treated as an interest of the
Director.
|
27.
|
Powers
And Duties Of The Board
|
27.1
|
Subject
to the provisions of the Companies Acts, 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.
|
27.2
|
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.
|
27.3
|
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.
|
28.
|
Fees,
Gratuities And Pensions
|
28.1
|
The
ordinary remuneration of the Directors office for their services
(excluding amounts payable under any other provision of these Bye-Laws)
shall be determined by the Board and 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 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.
|
28.2
|
In
addition to its powers under Bye-Law 28.1 the Board may (by establishment
of or maintenance of schemes or otherwise) provide additional 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.
|
28.3
|
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.
|
29.
|
Delegation
Of The Board’s Powers
|
29.1
|
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. Such attorney may, if so authorised under the power of
attorney, execute any deed, instrument or other document on behalf of the
Company.
|
29.2
|
The
Board may entrust to and confer upon any Director, Officer or, without
prejudice to the provisions of Bye-Law 29.3, other person any of the
powers, authorities and discretions 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, authorities and
discretions, and may from time to time revoke or vary all or any of such
powers, authorities and discretions but no person dealing in good faith
and without notice of such revocation or variation shall be affected
thereby.
|
29.3
|
When
required under the requirements from time to time of any stock exchange on
which the Shares of the Company are listed, the Board shall appoint an
Audit Committee and a Compensation Committee in accordance with the
requirements of such stock exchange. The Board also may
delegate any of its powers, authorities and discretions to any other
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 (2) or more members
shall be, as far as is practicable, governed by the Bye-Laws regulating
the proceedings of the Board.
|
30.
|
Proceedings
of The Board
|
30.1
|
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.
|
30.2
|
Notice
of a meeting of the Board may be given to a Director by word of mouth or
in any manner permitted by these Bye-Laws. A Director may
retrospectively waive the requirement for notice of any meeting by
consenting in writing to the business conducted at the meeting
|
30.3
|
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
majority of the Board of Directors appointed to the Board from time to
time, excluding from the size of the Board any vacancies. 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, subject to Bye-Law
30.12, 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.
|
30.4
|
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.
|
30.5
|
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.
|
30.6
|
The
Chairman or, in his absence, the Deputy Chairman shall preside as chairman
at every meeting of the Board. If at any meeting the Chairman
or Deputy Chairman is not present within five (5) 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.
|
30.7
|
The
meetings and proceedings of any committee consisting of two (2) 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.
|
30.8
|
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 an Alternate
Director, as provided for in these Bye-Laws 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.
|
30.9
|
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
(including, without limiting the generality of the foregoing, by telephone
or by video conferencing) 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 will be deemed to take place in
Bermuda unless otherwise determined by the Chairman of the
meeting.
|
30.10
|
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.
|
30.11
|
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 of a
committee of the Board, or ratify any transaction not duly authorised by
reason of a contravention of any such
provisions.
|
30.12
|
Where
proposals are under consideration concerning the appointment (including
fixing or varying the terms of appointment) of two (2) 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 under the provisions of
Bye-Law 26.5) shall be entitled to vote and be counted in the quorum in
respect of each resolution except that concerning his own
appointment.
|
30.13
|
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
31.
|
Officers
|
31.1
|
The
Officers of the Company, who may, or may not be Directors, may
be appointed by the Board, subject to Bye-Law 30.12. 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 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.
|
31.2
|
Any
appointment of a Director to an executive office shall terminate if he
ceases to be a Director but without prejudice to any rights or claims
which he may have against the Company by reason of such
cesser. A Director appointed to an executive office shall not
ipso facto cease to be a Director if his appointment to such executive
office terminates.
|
31.3
|
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.
|
31.4
|
Save
as otherwise provided, the provisions of these Bye-laws as to resignation
and disqualification of Directors shall mutatis mutandis apply to the
resignation and disqualification of
Officers.
|
MINUTES
32.
|
Minutes
|
32.1
|
The
Board shall cause minutes to be made and books kept for the purpose of
recording:
|
32.1.1
|
all
appointments of Officers made by the
Board;
|
32.1.2
|
the
names of the Directors and other persons (if any) present at each meeting
of the Board and of any committee;
and
|
32.1.3
|
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.
|
32.2
|
Shareholders
shall only be entitled to see the Register of Directors and Officers, the
Register, the financial information provided for in Bye-Law 39.3 and the
minutes of meetings of the Shareholders of the
Company.
|
SECRETARY
AND RESIDENT REPRESENTATIVE
33.
|
Secretary
And Resident Representative
|
33.1
|
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.
|
33.2
|
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
34.
|
The
Seal
|
34.1
|
The
Seal shall consist of a circular device with the name of the Company
around the outer margin thereof and the country and year of registration
in Bermuda 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 registration in Bermuda type written across the centre
thereof.
|
34.2
|
The
Board may authorise the production of one or more duplicate
seals.
|
34.3
|
Any
document required to be under seal or executed as a deed on behalf of the
Company may be
|
34.3.1
|
executed
under the Seal in accordance with these Bye-Laws; or
|
34.3.2
|
signed
or executed by any person authorised by the Board for that purpose,
without the use of the Seal.
|
34.4
|
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 attested by the signature
of:
|
34.4.1
|
two
(2) Directors; or
|
34.4.2
|
the
Secretary and one Director; or
|
34.4.3
|
any
one person authorised by the Board for that purpose;
|
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
35.
|
Dividends
And Other Payments
|
35.1
|
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 37, 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.
|
35.2
|
Except
insofar as the rights attaching to, or the terms of issue of, any Share
otherwise provide:
|
35.2.1
|
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;
|
35.2.2
|
dividends
or distributions out of contributed surplus may be apportioned and paid
pro rata according to the amounts paid-up on the Shares during any portion
or portions of the period in respect of which the dividend or distribution
is paid.
|
35.3
|
The
Board may deduct from any dividend, distribution or other monies 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.
|
35.4
|
3No
dividend, distribution or other monies payable by the Company on or in
respect of any Share shall bear interest against the
Company.
|
35.5
|
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 or by courier 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 (2) or more joint
holders may give effectual receipts for any dividends, distributions or
other monies payable or property distributable in respect of the Shares
held by such joint holders.
|
35.6
|
Any
dividend or distribution out of contributed surplus unclaimed for a period
of six (6) years from the date of declaration of such dividend or
distribution shall be forfeited and shall revert to the Company and the
payment by the Board of any unclaimed dividend, distribution, interest or
other sum payable on or in respect of the Share into a separate account
shall not constitute the Company a trustee in respect
thereof.
|
35.7
|
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.
|
36.
|
Reserves
|
The Board
may, before declaring any dividend or distribution out of contributed surplus,
set aside such sums as it thinks proper as reserves which shall, at the
discretion of the Board, be applicable for any purpose of the Company and
pending such application may, also at such discretion, either be employed in the
business of the Company or be invested in such investments as the Board may from
time to time think fit. The Board may also without placing the same
to reserve carry forward any sums which it may think it prudent not to
distribute.
CAPITALISATION
OF PROFITS
37.
|
Capitalisation
Of Profits
|
37.1
|
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.
|
37.2
|
Where
any difficulty arises in regard to any distribution under this Bye-Law,
the Board may settle the same as it thinks expedient and, in particular,
may authorise any person to sell and transfer any fractions or may resolve
that the distribution should be as nearly as may be practicable in the
correct proportion but not exactly so or may ignore fractions altogether,
and may determine that cash payments should be made to any Shareholders in
order to adjust the rights of all parties, as may seem expedient to the
Board. The Board may appoint any person to sign on behalf of
the persons entitled to participate in the distribution any contract
necessary or desirable for giving effect thereto and such appointment
shall be effective and binding upon the
Shareholders.
|
RECORD
DATES
38.
|
Record
Dates
|
38.1
|
Notwithstanding
any other provisions of these Bye-Laws, the Company may fix by Resolution,
or the Board may fix, any date as the record date for any dividend,
distribution, allotment or issue and for the purpose of identifying the
persons entitled to receive notices of any general meeting. Any
such record date may be on or at any time not more
than 30 days before any date on which such dividend,
distribution, allotment or issue is declared, paid or made or not more
than 60 days nor less than 10 days before the date of any such
meetings.
|
38.2
|
In
relation to any general meeting of the Company or of any class of
Shareholder or to any adjourned meeting or any poll taken at a meeting or
adjourned meeting of which notice is given, the Board may specify in the
notice of meeting or adjourned meeting or in any document sent to
Shareholders by or on behalf of the Board in relation to the meeting, a
time and date (a “record date”) which is not more than 60 days nor less
than 10 days before the date fixed for the meeting (the “meeting date”)
and, notwithstanding any provision in these Bye-Laws to the contrary, in
such case:
|
38.2.1
|
each
person entered in the Register at the record date as a Shareholder, or a
Shareholder of the relevant class, (a “record date holder”) shall be
entitled to attend and to vote at the relevant meeting and to exercise all
of the rights or privileges of a Shareholder, or a Shareholder of the
relevant class, in relation to that meeting in respect of the Shares, or
the Shares of the relevant class, registered in his name at the record
date;
|
38.2.2
|
as
regards any Shares, or Shares of the relevant class, which are registered
in the name of a record date holder at the record date but are not so
registered at the meeting date (“relevant Shares”), each holder of any
relevant Shares at the meeting date shall be deemed to have irrevocably
appointed that record date holder as his proxy for the purpose of
attending and voting in respect of those relevant Shares at the relevant
meeting (with power to appoint, or to authorise the appointment of, some
other person as proxy), in such manner as the record date holder in his
absolute discretion may determine;
and
|
38.2.3
|
accordingly,
except through his proxy pursuant to Bye-Law 38.2.2 above, a holder of
relevant Shares at the meeting date shall not be entitled to attend or to
vote at the relevant meeting, or to exercise any of the rights or
privileges of a Shareholder, or a Shareholder of the relevant class, in
respect of the relevant Shares at that
meeting.
|
38.3
|
The
entry of the name of a person in the Register as a record date holder
shall be sufficient evidence of his appointment as proxy in respect of any
relevant Shares for the purposes of this paragraph, but all the provisions
of these Bye-Laws relating to the execution and deposit of an instrument
appointing a proxy or any ancillary matter (including the Board’s powers
and discretions relevant to such matter) shall apply to any instrument
appointing any person other than the record date holder as proxy in
respect of any relevant Shares.
|
ACCOUNTING
RECORDS
39.
|
Accounting
Records
|
39.1
|
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.
|
39.2
|
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 (3) month period. No Shareholder
(other than an Officer of the Company) shall have any right to inspect any
accounting record or book or document of the Company except as conferred
by law or authorised by the Board or by
Resolution.
|
39.3
|
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
40.
|
Audit
|
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
41.
|
Service
Of Notices And Other Documents
|
41.1
|
Any
notice or other document (including a Share certificate and any notice of
a general meeting of the Company) 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 sending it
by courier to or leaving it at such registered address, or, where
applicable, by sending it by email or facsimile or other mode of
representing or reproducing words in a legible and non-transitory form to
an address supplied by such Shareholder for the purpose of the receipt of
notices or documents. 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 personal delivery, shall be deemed to have been
served or delivered at the time of delivery, or if sent by post, shall be
deemed to have been served or delivered forty-eight (48) hours after it
was put in the post, or if sent by courier or facsimile, twenty-four (24)
hours after sending, or if sent by email, twelve (12) hours after sending
and in proving such service or delivery, it shall be sufficient to prove
that the notice or document was properly addressed and stamped and put in
the post, sent by courier, facsimile or email, as the case may
be.
|
41.2
|
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.
|
41.3
|
If
any time, by reason of the suspension or curtailment of postal services
within Bermuda or any other territory, the Company is unable effectively
to convene a general meeting by notices sent through the post, a general
meeting may be convened by a notice advertised in at least one national
newspaper published in the territory concerned and such notice shall be
deemed to have been duly served on each person entitled to receive it in
that territory on the day, or on the first day, on which the advertisement
appears. In any such case the Company shall send confirmatory
copies of the notice by post if at least five (5) Clear Days before the
meeting the posting of notices to addresses throughout that territory
again becomes practicable.
|
41.4
|
Save
as otherwise provided, the provisions of these Bye-Laws as to service of
notices and other documents on Shareholders shall mutatis mutandis apply
to service or delivery of notices and other documents to the Company or
any Director, Alternate Director or Resident Representative pursuant to
these Bye-Laws.
|
DESTRUCTION
OF DOCUMENTS
42.
|
Destruction
of Documents
|
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 (6) years from the
date of registration thereof and all dividends mandates or variations or
cancellations thereof and notifications of change of address at any time after
the expiration of two (2) years from the date of recording thereof and all Share
certificates which have been cancelled at any time after the expiration of one
(1) year from the date of cancellation thereof and all paid dividend warrants
and cheques at any time after the expiration of one (1) 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 (1) 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 (1) 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:
42.1
|
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;
|
42.2
|
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
|
42.3
|
references
herein to the destruction of any document include references to the
disposal thereof in any manner.
|
UNTRACED
SHAREHOLDERS
43.
|
Untraced
Shareholders
|
43.1
|
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:
|
43.1.1
|
during
a period of six (6) years, no dividend in respect of those Shares has been
claimed and at least three (3) cash dividends have become payable on the
Share in question;
|
43.1.2
|
on
or after expiry of that period of six (6) years, the Company has inserted
an advertisement in a newspaper circulating in the area of the last
registered address at which service of notices upon the Shareholder or
person entitled by transmission may be effected in accordance with these
Bye-Laws and in a national newspaper published in the relevant country,
giving notice of its intention to sell such
Shares:
|
43.1.3
|
during
that period of six (6) years and the period of three (3) months following
the publication of such advertisement, the Company has not received any
communication from such Shareholder or person entitled by transmission;
and
|
43.1.4
|
if
so required by the rules of any securities exchange upon which the Shares
in question are listed for the time being, notice has been given to that
exchange of the Company’s intention to make such
sale.
|
43.2
|
If
during any six (6) year period referred to in Bye-Law 43.1 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 six (6) years) have been satisfied in regard to the further
Shares, the Company may also sell the further
Shares.
|
43.3
|
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.
|
43.4
|
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.
|
WINDING
UP
44.
|
Winding
Up
|
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
AND INSURANCE
45.
|
Indemnity
And Insurance
|
45.1
|
Subject
to the proviso below, every Indemnified Person shall be indemnified and
held harmless out of the assets 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 by or by reason of any act done, conceived in
or omitted in the conduct of the Company’s business or in the discharge of
his duties and the indemnity contained in this Bye-Law shall
extend to any Indemnified Person acting in any office or trust in the
reasonable belief that he has been appointed or elected to such office or
trust notwithstanding any defect in such appointment or election PROVIDED
ALWAYS that the indemnity contained in this Bye-Law shall not extend to
any matter which would render it void pursuant to the Companies
Acts.
|
45.2
|
No
Indemnified Person shall be liable to the Company for the acts, defaults
or omissions of any other Indemnified
Person.
|
45.3
|
Every
Indemnified Person shall be indemnified out of the assets of the Company
against all liabilities incurred by him by or by reason of any act done,
conceived in or omitted in the conduct of the Company’s business or in the
discharge of his duties, 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.
|
45.4
|
To
the extent that any Indemnified Person is entitled to claim an indemnity
pursuant to these Bye-Laws in respect of amounts paid or discharged by
him, the relevant indemnity shall take effect as an obligation of the
Company to reimburse the person making such payment or effecting such
discharge.
|
45.5
|
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 Indemnified Person on account of any action taken
by such Indemnified Person or the failure of such Indemnified Person 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 Indemnified Person or to
recover any gain, personal profit or advantage to which such Indemnified
Person is not legally
entitled.
|
45.6
|
Subject
to the Companies Acts, expenses incurred in defending any civil or
criminal action or proceeding for which indemnification is required
pursuant to these Bye-Laws 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 Person to repay such amount
if it shall ultimately be determined that the Indemnified Person is not
entitled to be indemnified pursuant to these Bye-Laws 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:
|
45.6.1
|
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
|
45.6.2
|
in
the case such a meeting cannot be constituted by lack of a disinterested
quorum, by independent legal counsel in a written opinion;
or
|
45.6.3
|
by
a majority vote of the
Shareholders.
|
45.7
|
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 are made to meet expenditures
incurred for the purpose of enabling such Indemnified Person to properly
perform his or her duties to the
Company.
|
45.8
|
Without
prejudice to the provisions of this Bye-Law, the Board shall have the
power to purchase and maintain insurance for or for the benefit of any
Indemnified Person or any persons who are or were at any time Directors,
Officers, or 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
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.
|
AMALGAMATION
46.
|
Amalgamation
|
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:
46.1
|
the
Board, by resolution adopted by a majority of Directors then in office,
and either:
|
46.2
|
the
Shareholders, by Resolution passed by a majority of votes cast at such
meeting and the quorum for such meeting shall be that required in Bye-Law
20.1; or
|
46.3
|
the
Shareholders, by unanimous written
Resolution.
|
CONTINUATION
47.
|
Continuation
|
Subject
to the Companies Acts, the Company may with the approval of:
47.1
|
the
Board, by resolution adopted by a majority of Directors then in office,
and
|
47.2
|
the
Shareholders by Resolution passed by a majority of votes cast at the
general meeting, approve the discontinuation of the Company in Bermuda and
the continuation of the Company in a jurisdiction outside
Bermuda.
|
ALTERATION
OF BYE-LAWS
48.
|
Alteration
Of Bye-laws
|
48.1
|
Subject
to Bye-Law 48.2 and 48.3, these Bye-Laws may be revoked or amended only by
the Board, which may from time to time revoke or amend them in any way by
a resolution of the Board passed by a majority of the Directors then in
office and eligible to vote on that resolution, but no such revocation or
amendment shall be operative unless and until it is approved at a
subsequent general meeting of the Company by the Shareholders by
Resolution passed by a majority of votes cast.
|
48.2
|
Where
the Board has, by a resolution passed by a majority of the Directors then
in office and eligible to vote on that resolution, approved a revocation
or amendment of Bye-Laws 23, 24, 47, or 48 (not to include Bye-Law 48.3),
the revocation or amendment will not be effective unless approved by a
Resolution of Shareholders holding not less than 80 per cent of the issued
Shares of the Company carrying the right to vote at general meetings at
the relevant time.
|
BUSINESS
COMBINATIONS
49.
|
[Intentionally
Omitted]
|
Notification
by Interested Shareholders
50.
|
Notification
by Interested Shareholders
|
50.1
|
Any
holder of Shares or warrants in the Company must notify the Company
without delay, and including particulars of the price, amount and nature
of the relevant transaction, if the aggregate nominal amount of Shares or
warrants in which he has an Interest (A) exceeds three per cent
by nominal value of the entire issued class of Shares or warrants of the
Company respectively, or (B) changes from an aggregate amount which
exceeded three per cent by nominal value of the then issued class of
Shares or warrants of the Company so as to increase or decrease through
any single percentage.
|
50.2
|
On
written request by the Company, a holder of Shares or warrants in the
Company is obliged to notify the Company (within the period and including
the particulars required by the Company) of any person who has an Interest
in such Shares or warrants.
|
50.3
|
Unless
otherwise directed by the Board, for so long as any person is in default
of his obligations under this bye-law he shall not be entitled to vote at
any meeting of the Company nor receive dividends in respect
of his Shares, and shall not be entitled to exercise his
warrants.
|
50.4
|
In
this bye-law, “Interest” includes an interest of any kind, (whether
conditional or absolute) whatsoever in the Shares or warrants; (and
accordingly there are to be disregarded any restraints or restrictions to
which the exercise of any right attached to the interest is or may be
subject), including:
|
50.4.1
|
a
joint interest,
|
50.4.2
|
a
beneficial interest,
|
50.4.3
|
a
contractual right to
purchase;
|
50.4.4
|
the
right to exercise any right conferred by or the right to control the
exercise of such right in Shares or warrants;
or
|
50.4.5
|
the
right to call for delivery of, the right to acquire or the obligation to
take an interest in Shares or
warrants.
|
50.5
|
For
the purposes of 50.4.4 above, a person is entitled to exercise or control
the exercise of any right conferred by the holding of Shares or warrants
if he has a right (whether subject to conditions or not) the exercise of
which would make him so entitled, or is under an obligation (whether so
subject or not) the fulfillment of which would make him so
entitled.
|
CHARITABLE
DONATIONS
51.
|
Charitable
Donations
|
The
Company shall not make more than $250,000.00 per fiscal year in charitable
donations during fiscal years 2006, 2007 and 2008.
A6565178.1
Houston
3442462v.1