Exhibit 3.2
AMENDED AND RESTATED
B Y E L A W S
OF
Invesco Ltd.
TABLE OF CONTENTS
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Page
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INTERPRETATION
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1. Interpretation
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1
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BOARD OF DIRECTORS
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2. Board of Directors
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3
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3. Powers of the Board
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4
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4. Power to Delegate to a Committee
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4
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5. Power to Appoint and Dismiss Employees
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4
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6. Power to Borrow and Charge Property
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4
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7. Exercise of Power to Purchase Shares of or Discontinue the Company
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5
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8. Board Size; Classes of Directors
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5
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9. Defects in Appointment of Directors
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7
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10. Shareholder Proposals and Nominations
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7
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11. Removal of Directors
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10
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12. Vacancies on the Board
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10
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13. Notice of Meetings of the Board
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11
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14. Quorum at Meetings of the Board
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11
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15. Meetings of the Board
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12
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16. Unanimous Written Resolutions
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12
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17. Contracts and Disclosure of Directors Interests
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12
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18. Remuneration of Directors
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12
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OFFICERS
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19. Officers of the Company
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13
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20. Remuneration of Officers
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13
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21. Duties of Officers
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13
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22. Chairperson and Secretary of Meetings
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13
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23. Register of Directors and Officers
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13
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MINUTES
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24. Obligations of Board to Keep Minutes
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14
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INDEMNITY
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25. Indemnification and Exculpation of Directors of the Company and Others
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14
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26. Waiver of Certain Claims
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15
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MEETINGS
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27. Notice of Annual General Meeting of Shareholders
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16
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-i-
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Page
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28. Notice of Special General Meeting
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16
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29. Accidental Omission of Notice of General Meeting
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16
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30. Short Notice
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16
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31. Postponement of Meetings
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16
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32. Quorum for General Meeting
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17
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33. Adjournment of Meetings
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17
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34. Attendance at Meetings
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17
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35. Written Resolutions
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18
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36. Attendance of Directors
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18
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37. Voting at Meetings
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18
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38. Voting by Hand or by Poll
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18
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39. Decision of Chairperson
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20
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40. Instrument of Proxy
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21
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41. Representation of Corporations at Meetings
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21
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VOTES OF SHAREHOLDERS
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42. General
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22
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SHARE CAPITAL AND SHARES
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43. Share Capital
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22
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44. Rights of Shares
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22
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45. Modification of Rights
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24
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46. Shares
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24
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47. Registered Holder of Shares
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25
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48. Death of a Joint Holder
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25
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49. Share Certificates
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25
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50. Calls on Shares
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26
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51. Forfeiture of Shares
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26
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INTERESTED SHAREHOLDERS
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52. Limitations on Business Combinations
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27
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53. Certain Definitions
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27
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REGISTER OF SHAREHOLDERS
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54. Contents of Register of Shareholders
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30
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55. Inspection of Register of Shareholders
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30
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56. Determination of Record Dates
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30
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TRANSFER OF SHARES
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57. Instrument of Transfer
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30
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58. Restrictions on Transfer
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31
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-ii-
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Page
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TRANSMISSION OF SHARES
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59. Representative of Deceased Shareholder
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31
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60. Registration on Death or Bankruptcy
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31
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DIVIDENDS AND OTHER DISTRIBUTIONS
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61. Declaration of Dividends by the Board
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32
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62. Other Distributions
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32
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63. Reserve Fund
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32
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64. Deduction of Amounts Due to the Company
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32
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CAPITALIZATION
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65. Issue of Bonus Shares: Capitalization of Profits
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32
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ACCOUNTS AND FINANCIAL STATEMENTS
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66. Records of Account
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33
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67. Financial Year End
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33
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68. Financial Statements
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33
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AUDIT
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69. Appointment of Auditor
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34
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70. Remuneration of Auditor
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34
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71. Report of the Auditor
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34
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NOTICES
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72. Notices to Shareholders of the Company
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34
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73. Notices to Joint Shareholders
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34
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74. Service and Delivery of Notice
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34
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SEAL OF THE COMPANY
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75. The Seal
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35
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76. Manner in which Seal is to be Affixed
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35
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WINDING-UP
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77. Winding-Up/Distribution by Liquidator
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35
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ALTERATION OF BYE-LAWS
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78. Alteration of Bye-Laws
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35
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-iii-
INTERPRETATION
1.
Interpretation
(1) In these Bye-Laws the following words and expressions shall have the following meanings,
respectively:
(a)
Act
means the Companies Act 1981 of Bermuda as amended from time to time;
(b)
Affiliate
means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with such Person. For the purposes of this definition,
control, with respect to any Person, means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract, or otherwise;
(c)
Associate
has the meaning set forth in
Bye-Law 53(1)
;
(d)
Audit Committee
means the committee appointed by the Board in accordance
with these Bye-Laws;
(e)
Auditor
includes any individual, partnership or other entity appointed in
accordance with the Act to audit the accounts of the Company;
(f)
beneficially own
has the meaning set forth in
Bye-Law 53(2)
;
(g)
beneficially owned
has the meaning set forth in
Bye-Law 10(3)
;
(h)
Beneficial Owner
has the meaning set forth in
Bye-Law 53(2)
;
(i)
Board
means the Board of Directors appointed or elected pursuant to these
Bye-Laws and acting pursuant to the Act and these Bye-Laws;
(j)
Business Combination
has the meaning set forth in
Bye-Law 53(3)
;
(k)
Business Day
means any day other than a Saturday, a Sunday, any day on
which commercial banking institutions in Hamilton, Bermuda or Atlanta, Georgia are
authorized or obligated by law to close or any day on which the New York Stock Exchange is
not open for trading;
(l)
Cause
means (1) willful misconduct or gross negligence which is
materially injurious to the Company, (2) fraud or embezzlement or (3) a conviction of, or a
plea of guilty or no contest to, a felony;
(m)
Chairperson
means the person designated by the Board as the chairperson
of the Board;
(n)
Common Shares
has the meaning set forth in
Bye-Law 43
;
(o)
Company
means the company for which these Bye-Laws are approved and
confirmed;
(p)
Director
means a director of the Company;
(q)
Exchange Act
means the U.S. Securities Exchange Act of 1934, as amended;
(r)
Interested Shareholder
has the meaning set forth in
Bye-Law
53(4)
;
(s)
legal proceeding
has the meaning set forth in
Bye-Law 59
;
(t)
legal representative
has the meaning set forth in
Bye-Law 59
.
(u)
Nomination and Corporate Governance Committee
means the committee
appointed by the Board in accordance with these Bye-Laws as such;
(v)
notice
means written notice as further defined in these Bye-Laws unless
otherwise specifically stated;
(w)
Officer
means any person appointed by the Board to hold an office in the
Company;
(x)
Person
means an individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization or government or political
subdivision thereof;
(y)
Preferred Shares
has the meaning set forth in
Bye-Law 44(3)
;
(z)
proceeding
has the meaning set forth in
Bye-Law 25(1)
;
(aa)
public announcement
has the meaning set forth in
Bye-Law 10(3)
;
(bb)
Register of Directors and Officers
means the Register of Directors and
Officers referred to in these Bye-Laws and shall be the same register of directors and
officers required to be kept by the Company under the Act;
(cc)
Register of Shareholders
means the Register of Shareholders referred to
in these Bye-Laws and shall be the same register of members required to be kept by the
Company under the Act;
(dd)
Resident Representative
means any Person appointed to act as resident
representative of the Company in accordance with the Act;
(ee)
Secretary
means the person appointed to perform any or all of the duties
of secretary of the Company and includes any deputy or assistant or acting secretary;
(ff)
Securities Act
means the U.S. Securities Act of 1933, as amended;
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(gg)
Shareholder
shall have the same meaning as the term Member in the Act
and means the Person registered in the Register of Shareholders as the holder of shares
(sometimes referred to in these Bye-Laws as the direct holder) of the Company or, when two
or more Persons are so registered as joint holders of shares, means the Person whose name
stands first in the Register of Shareholders as one of such joint holders or all of such
Persons as the context so requires;
(hh)
Undesignated Shares
has the meaning set forth in
Bye-Law 43
;
(ii)
United States of America
or
U.S.
means the United States of
America and dependent territories or any part thereof;
(jj)
Voting Commitment
has the meaning set forth in
Bye-Law 8(4)
.
(2) In these Bye-Laws, where not inconsistent with the context:
(a) words denoting the plural number include the singular number and vice versa;
(b) words denoting the masculine gender include the feminine and neuter gender;
(c) the words:
(i) may shall be construed as permissive;
(ii) shall shall be construed as imperative;
(d) references to particular laws, rules and regulations (including references to
particular Sections of, Rules under and filings pursuant to the Exchange Act), shall be
deemed to refer to any applicable successor laws, rules, regulations or filings as may be
enacted or promulgated from time to time; and
(e) unless otherwise provided herein, words or expressions defined in the Act shall
bear the same meaning in these Bye-Laws.
(3) Expressions referring to writing or its cognates shall, unless the contrary intention
appears, include facsimile, printing, lithography, photography, electronic mail and other modes of
representing words in a visible form.
(4) Headings used in these Bye-Laws are for convenience only and are not to be used or relied
upon in the construction hereof.
BOARD OF DIRECTORS
2.
Board of Directors
The Board shall have the full power and authority provided to it by the Act and these
Bye-Laws.
-3-
3.
Powers of the Board
(1) In exercising such power and authority, the Board may exercise all such powers of the
Company as are not, by statute or by these Bye-Laws, required to be exercised by the Company in a
general meeting subject, nevertheless, to these Bye-Laws and the provisions of any statute.
(2) No regulation or alteration to these Bye-Laws made by the Company in a general meeting
shall invalidate any prior act of the Board that would have been valid if such regulation or
alteration had not been made.
(3) The Board may procure that the Company pays all expenses incurred in promoting and
incorporating the Company.
(4) The Board may from time to time and at any time by power of attorney appoint any company,
firm, person or body of persons, whether nominated directly or indirectly by the Board, to be an
attorney of the Company for such purposes and with such powers, authorities and discretions (not
exceeding those vested in or exercisable by the Board) and for such period and subject to such
conditions as it may think fit and any such power of attorney may contain such provisions for the
protection and convenience of Persons dealing with any such attorney as the Board may think fit and
may also authorize any such attorney to sub-delegate all or any of the powers, authorities and
discretions so vested in the attorney. Such attorney may, if so authorized by the power of
attorney, execute any deed or instrument or other document on behalf of the Company under hand or
under its common seal.
4.
Power to Delegate to a Committee
The Board may delegate any of its powers to a committee appointed by the Board (including the
power to sub-delegate) and every such committee shall conform to such directions as the Board shall
impose on them. Committees may consist of one or more Directors.
The meetings and proceedings of any such committee shall be governed by the provisions of
these Bye-Laws regulating the meetings and proceedings of the Board, so far as the same are
applicable and are not superseded by directions imposed by the Board, and in that connection the
Board may authorize a committee to adopt such rules for its meetings.
5.
Power to Appoint and Dismiss Employees
The Board may appoint, suspend or remove any Officer, employee, agent or representative of the
Company and may determine their duties.
6.
Power to Borrow and Charge Property
The Board may exercise all of the powers of the Company to borrow money and to mortgage or
charge its undertaking, property and uncalled capital, or any part thereof, and may
issue debentures, debenture stock and other securities whether outright or as security for any
debt, liability or obligation of the Company or any third party.
-4-
7.
Exercise of Power to Purchase Shares of or Discontinue the Company
(1) The Board may exercise all of the powers of the Company to purchase (sometimes referred to
in these Bye-Laws as repurchase) all or any part of its own shares pursuant to the Act.
(2) The Board may exercise all of the powers of the Company to discontinue or redomesticate
the Company to a named country or jurisdiction outside Bermuda pursuant to the Act.
8.
Board Size; Classes of Directors
(1) Subject to the rights of the holders of any class or series of preference shares, the
Board shall consist of such number of Directors (not less than 3) as the Board may determine from
time to time by resolution adopted by the affirmative vote of at least a majority of the Board then
in office. Any increase in the number of Directors on the Board pursuant to this
Bye-Law 8
shall be deemed to be a vacancy and may be filled in accordance with
Bye-Law 12
hereof.
(2) Subject to the rights of the holders of any class or series of preference shares,
Directors shall be elected, except in the case of a vacancy (as provided for in
Bye-Law 11
or
12
, as the case may be), by the Shareholders in the manner set forth in these Bye-Laws
at an annual general meeting of Shareholders or any special general meeting called for such purpose
and shall hold office for the term set forth in paragraph (3) of this
Bye-Law 8
.
(3) At the time when these Bye-Laws come into effect (as indicated in the resolution of the
Shareholders adopting these Bye-Laws), subject to the rights of the holders of any class or series
of preference shares, the Directors shall be divided into three classes, designated Class I,
Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third
of the total number of Directors constituting the entire Board. The Class I Directors shall
initially serve a one year term of office (expiring at the annual general meeting of Shareholders
in 2008), the Class II Directors shall initially serve a two year term of office (expiring at the
annual general meeting of Shareholders in 2009) and the Class III Directors shall initially serve a
three year term of office (expiring at the annual general meeting of Shareholders in 2010). At the
annual general meeting of Shareholders in 2008 and each succeeding annual general meeting of
Shareholders, successors to the class of Directors whose term expires at such annual general
meeting of Shareholders shall be elected for a three year term. If the number of Directors is
changed, the Board shall apportion any increase or decrease among the classes so as to maintain the
number of Directors in each class as nearly equal as possible, and any Director of any class
elected to fill a vacancy shall hold office for a term that shall coincide with the remaining term
of the other Directors of that class, but in no case shall a decrease in the number of Directors
shorten the term of any Director then in office. A Director shall hold office until the annual
general meeting of Shareholders for the year in which such Directors term expires; provided
that, notwithstanding the foregoing, each Director shall hold office until such Directors
successor shall have been duly elected and qualified or until such Director is removed from office
pursuant to
Bye-Law 11
or such Directors office is otherwise earlier vacated.
-5-
(4) No person may be appointed, nominated or elected a Director unless such person, at the
time such person is nominated and appointed or elected, would then be able to serve as a Director
without conflicting in any material respect with any law or regulation applicable to the Company,
as determined in good faith by the Board of Directors. In addition, to be eligible to be a nominee
for election or reelection as a Director, a person must deliver (in accordance with the time
periods prescribed for delivery of notice under
Bye-Law 10
) to the Secretary at the
principal executive offices of the Company a written questionnaire with respect to the background
and qualification of such person and the background of any other person or entity on whose behalf
the nomination is being made (which questionnaire shall be provided by the Secretary upon written
request) and a written representation and agreement (in the form provided by the Secretary upon
written request) that such person (i) will abide by the requirements of these Bye-Laws, (ii) is not
and will not become a party to (a) any agreement, arrangement or understanding with, and has not
given any commitment or assurance to, any person or entity as to how such person, if elected as a
Director, will act or vote on any issue or question (a Voting Commitment) that has not been
disclosed to the Company or (b) any Voting Commitment that could limit or interfere with such
persons ability to comply, if elected as a Director, with such persons fiduciary duties under
applicable law, (iii) is not and will not become a party to any agreement, arrangement or
understanding with any person or entity other than the Company with respect to any direct or
indirect compensation, reimbursement or indemnification in connection with service or action as a
Director that has not been disclosed therein, and (iv) in such persons individual capacity and on
behalf of any person or entity on whose behalf the nomination is being made, would be in
compliance, if elected as a Director, and will comply with all applicable publicly disclosed
corporate governance, conflict of interest, confidentiality and stock ownership and trading
policies and guidelines of the Company.
(5) Subject to the rights of the holders of any class or series of preference shares, at any
meeting for the election of Directors at which a quorum is present, each nominee shall be elected
by the vote of the majority of the votes cast with respect to the Director, provided that if the
number of nominees exceeds the number of positions available for the election of Directors, the
Directors so elected shall be those nominees who have received the greatest number of votes and at
least a majority of the votes cast in person or by proxy at any such meeting. For purposes of this
Bye-Law 8(5)
, a majority of the votes cast means that the number of shares voted for a
Director must exceed 50% of the votes cast with respect to that Director. Votes cast with respect
to the election of a Director shall include only votes cast with respect to stock present in person
or represented by proxy at the meeting and entitled to vote and shall exclude abstentions.
(6) If a nominee for Director who is an incumbent Director is not elected and no successor has
been elected at such meeting, the Director will promptly tender his or her resignation to the
Board. The Nomination and Corporate Governance Committee shall make a recommendation to the Board
as to whether to accept or reject the tendered resignation, or whether other actions should be
taken. The Board shall act on the tendered resignation, taking into account the Nomination and
Corporate Governance Committees recommendation, and
publicly disclose (by a press release, a filing with the U.S. Securities and Exchange
Commission or other broadly disseminated means of communication) its decision regarding the
tendered resignation and the rationale behind the decision within 90 days from the date of the
certification of the election results. The Nomination and Corporate Governance Committee in making
its recommendation, and the Board in making its decision, may each consider any factors or other
-6-
information that it considers appropriate and relevant. The Director who tenders his or her
resignation shall not participate in the recommendation of the Nomination and Corporate Governance
Committee or the decision of the Board with respect to his or her resignation. If such incumbent
Directors resignation is not accepted by the Board, such Director shall continue to serve until
the next annual meeting and until his or her successor is duly elected, or his or her earlier
resignation or removal. If a Directors resignation is accepted by the Board pursuant to these
Bye-Laws, or if a nominee for Director is not elected and the nominee is not an incumbent Director,
then the Board, in its sole discretion, may fill any resulting vacancy pursuant to
Bye-Law
12
or may decrease the size of the Board pursuant to this
Bye-Law 8
.
9.
Defects in Appointment of Directors
All acts done by any meeting of the Board or by a committee of the Board shall,
notwithstanding that it be afterwards discovered that there was some defect in the appointment of
any person as a Director, or that they or any of them were disqualified, be as valid as if every
such person had been duly appointed and was qualified to be a Director.
10.
Shareholder Proposals and Nominations
(1)
Annual General Meeting
(a) At any annual general meeting of Shareholders, nominations of persons for election
to the Board of Directors of the Company and the proposal of business to be considered by
the Shareholders may be made (i) pursuant to the Companys notice of meeting, (ii) by or at
the direction of a majority of the Board or (iii) by any Shareholder who was a Shareholder
of record at the time of giving of notice provided for in these Bye-Law, who is entitled to
vote at the meeting and who complies with the procedures set forth in these Bye-Laws. To be
properly brought before a meeting of Shareholders, business must be of a proper subject for
action by Shareholders under applicable law and must not, if implemented, cause the Company
to violate any applicable law or regulation, each as determined in good faith by the Board.
(b) For nominations or other business to be properly brought before an annual general
meeting by a Shareholder pursuant to these Bye-Laws, the Shareholder must have given timely
notice thereof in writing to the Secretary and such other business must otherwise be a
proper matter for Shareholder action. Notice shall be considered timely only if given to
the Secretary of the Company not less than 90 nor more than 120 days prior to the first
anniversary of the date of the preceding years annual general meeting of Shareholders;
provided
,
however
, that if the date of the annual general meeting is more
than 30 days before or more than 60 days after such anniversary date, any notice by the
Shareholder of business or the nomination of Directors for election or reelection to be
brought before the annual general meeting to be timely must be so delivered not earlier than
the close of business on the 120th day prior to such annual general meeting and not later
than the close of business on the later of the 90th day prior to such annual general meeting
and the 10th day following the day on which public announcement of the date of such meeting
is first made. Notwithstanding the foregoing, in the event that the number of Directors to
be elected to the Board at the applicable annual general meeting is
-7-
increased and there is
no public announcement by the Company naming all of the nominees for Director or specifying
the size of the increased Board of Directors at least 100 days prior to the first
anniversary of the preceding years annual general meeting, a Shareholders notice required
by this
Bye-Law 10
shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the Company not later than the close of
business on the 10th day following the day on which such public announcement is first made
by the Company.
(c) Any Shareholder who gives notice of any such proposal shall deliver therewith, in
writing: the text of the proposal to be presented and a brief statement of the reasons why
such Shareholder and the beneficial owner, if any, on whose behalf the proposal is made
favors the proposal; the name and address, as they appear on the Companys books, of any
such Shareholder and the name and address of any such beneficial owner; the number and class
of all shares of each class of stock of the Company beneficially owned by such Shareholder
and any such beneficial owner and evidence thereof reasonably satisfactory to the Secretary
of the Company; a description of any material interest in the proposal of such Shareholder
and any such beneficial owner (other than any interest as a Shareholder) and of all
arrangements or understandings between such Shareholder and any such beneficial owner and
any other Person or Persons in connection with the proposal of such business; and 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.
(d) Any Shareholder desiring to nominate any person for election as a Director shall
deliver with such notice a statement in writing setting forth: the name of the person to be
nominated; the number and class of all shares of each class of stock of the Company
beneficially owned by such person; the information regarding such person required by
paragraphs (d), (e) and (f) of Item 401 of Regulation S-K adopted by the U.S. Securities and
Exchange Commission; all other information relating to such person that is required to be
disclosed in solicitations of proxies for Directors pursuant to Regulation 14A under the
Exchange Act (including such persons signed consent to serve as a Director if elected); a
certification by each Shareholder nominee that such nominee is as of the time of nomination
and will be as of the time of the applicable meeting eligible to serves as a Director in
accordance with this
Bye-Law 10
and (in both such persons individual capacity and
on behalf of any Person for whom such person may be a representative), has complied with
Bye-Law 8
and has complied and will comply with all applicable corporate governance,
conflicts, confidentiality and stock ownership and trading policies of the Company; the name
and address, as they appear on the Companys books, of such Shareholder and the name and
address of any such beneficial owner, if
any, on whose behalf the nomination is made; the number and class of all shares of each
class of stock of the Company beneficially owned by such Shareholder or any such beneficial
owner; and a description of all arrangements or understandings between such Shareholder or
any such beneficial owner and each nominee and any other Person or Persons (including their
names) pursuant to which the nomination or nominations are to be made. The Company may
require any proposed nominee to furnish such other
-8-
information as may be reasonably required
by the Company to determine the qualifications of such proposed nominee to serve as a
Director.
(2)
Special General Meeting
(a) The Chairperson, the Chief Executive Officer or the Board acting by vote of a
majority of the Board may convene a special general meeting of the Company whenever in its
judgment such a meeting is necessary or desirable. Subject to the next sentence and subject
to the rights of the holders of any class or series of preference shares, special general
meetings of the Company may only be called as provided in the preceding sentence. In
addition, the Board shall, (i) on the requisition of the holders of any class or series of
preference shares as may have express rights to requisition special general meetings, and
(ii) on the requisition of Shareholders holding at the date of the deposit of the
requisition not less than one-tenth of such of the paid-up capital of the Company as at the
date of the deposit carries the right to vote in general meetings of the Company, forthwith
proceed to convene a special general meeting of the Company (or the applicable class(es) of
shares) and the provisions of Section 74 of the Act shall apply. Special general meetings
may be held at such place as may from time to time be designated by the Board and stated in
the notice of the meeting. In any special general meeting of the Company only such business
shall be conducted as is set forth in the notice thereof.
(b) Nominations of persons for election to the Board may be made at a special general
meeting at which Directors are to be elected pursuant to the Companys notice of meeting (i)
by or at the direction of the Board or (ii) provided that the Board has determined that
Directors shall be elected at such meeting, by any Shareholder who is a Shareholder of
record at the time of giving of notice provided for in this Bye-Law, who shall be entitled
to vote at the meeting and who complies with the notice procedures set forth in these
Bye-Laws. In the event the Company calls a special general meeting for the purpose of
electing one or more Directors to the Board, any such Shareholder may nominate a person or
persons (as the case may be) for election to such position(s) as specified in the Companys
notice of meeting, if the Shareholders notice containing the information specified in
Bye-Laws 10(1)(d)
and
8(4)
shall be delivered to the Secretary at the
principal executive offices of the Company not earlier than the close of business on the
120th day prior to such special general meeting and not later than the close of business on
the later of the 90th day prior to such special general meeting and the 10th day following
the day on which public announcement of the date of such meeting is first made and of the
nominees proposed by the Board to be elected at such meeting.
(3)
General.
As used in this
Bye-Law 10
, shares beneficially owned shall mean all
shares as to which such Person, together with such Persons affiliates and associates (as defined
in Rule 12b-2 under the Exchange Act), may be deemed to beneficially own pursuant to Rules
13d-3 and 13d-5 under the Exchange Act, as well as all shares as to which such Person, together
with such Persons affiliates and associates, has the right to become the beneficial owner pursuant
to any agreement or understanding, or upon the exercise of warrants, options or rights to convert
or exchange (whether such rights are exercisable immediately or only after the passage of time or
the occurrence of conditions). The person presiding at the meeting shall
-9-
determine whether such
notice has been duly given and shall direct that proposals and nominees not be considered if such
notice has not been so given. For purposes of this by-law, public announcement shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the Company with the U.S.
Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. In no
event shall the public announcement of an adjournment or postponement of an annual meeting or a
special meeting commence a new time period for the giving of a Shareholders notice as described
above.
(4) The chairperson of the annual general meeting of Shareholders or special general meeting
shall, if the facts warrant, refuse to acknowledge a proposal or nomination not made in compliance
with the foregoing procedure and any such proposal or nomination not properly brought before the
meeting shall not be considered.
11.
Removal of Directors
(1) Subject to the rights of the holders of any class or series of preference shares, the
Shareholders may, at any annual general or special general meeting convened and held in accordance
with these Bye-Laws, remove a Director before the stated expiry of his term only for Cause by the
affirmative vote of at least a majority of the total combined voting power of all of the issued and
outstanding shares of the Company entitled to vote on the election of Directors.
(2) Subject to the rights of the holders of any class or series of preference shares, a
vacancy on the Board created by the removal of a Director under the provisions of paragraph (1) of
this
Bye-Law 11
may be filled by the Shareholders at the meeting at which such Director is
removed, acting by the affirmative vote of Shareholders holding at least a majority of the total
combined voting power of all of the issued and outstanding shares of the Company entitled to vote
on the election of Directors, and, in the absence of such election or appointment, the Board may
fill the vacancy. A Director so elected or appointed shall hold office for a term that shall
coincide with the remaining term of the removed Director.
(3) Subject to the rights of the holders of any class or series of preference shares, the
Board may, at any meeting of the Board convened and held in accordance with these Bye-Laws, remove
a Director before the stated expiry of his term only for Cause by a resolution of the Board carried
by the affirmative vote of at least a two-thirds majority of the Board then in office.
12.
Vacancies on the Board
(1) Subject to the rights of the holders of any class or series of preference shares, the
Board shall have the power from time to time and at any time to appoint any person as a Director to
fill a vacancy on the Board occurring as the result of any of the events listed in paragraph (3)
of this
Bye-Law 12
or from an increase in the size of the Board pursuant to
Bye-Law 8
. The Board shall also have the power from time to time to fill any vacancy left
unfilled at a general meeting. A Director appointed by the Board to fill a vacancy shall hold
office for a term that shall coincide with the remaining term of the other Directors of the class
in which such vacancy arose and as otherwise provided in
Bye-Law 8(3)
.
-10-
(2) The Board may act notwithstanding any vacancy in its number but, if and so long as its
number is reduced below the number fixed by these Bye-Laws as the quorum necessary for the
transaction of business at meetings of the Board, the continuing Directors or Director may act,
notwithstanding the absence of a quorum, for the purpose of (i) summoning a general meeting of the
Company or (ii) preserving the assets of the Company.
(3) The office of a Director shall be vacated if the Director:
(a) is removed from office pursuant to these Bye-Laws or is prohibited from being a
Director by law;
(b) is or becomes bankrupt or makes any arrangement or composition with his creditors
generally;
(c) is or becomes disqualified, disabled, of unsound mind, or dies; or
(d) resigns his or her office by notice in writing to the Company.
(4) Notwithstanding anything contained herein to the contrary, the provisions of
Bye-Law
11
, this
Bye-Law 12
and all other provisions contained in these Bye-Laws related to the
filling of vacancies on the Board shall be subject to any contractual or other legally binding
obligation hereafter created by the Company and approved by the Board to provide any third party
with the ability to nominate persons for election as Directors.
13.
Notice of Meetings of the Board
(1) The Chairperson may, and the Chairperson on the requisition of the Chief Executive Officer
or a majority of the Directors then in office shall, at any time, upon two days notice (or such
shorter notice as may be reasonable under the circumstances), summon a meeting of the Board.
(2) Notice of a meeting of the Board shall be deemed to be duly given to a Director if it is
sent to such Director by mail, courier service, facsimile, email or other mode of representing
words in a legible form at such Directors last known address or any other address given by such
Director to the Company for this purpose.
14.
Quorum at Meetings of the Board
The quorum necessary for the transaction of business at a meeting of the Board shall be as
fixed by the Board from time to time and, unless so fixed at any other level, shall be at least
one-half of the total number of the Directors then in office, present in person or represented
by a duly authorized representative appointed in accordance with the Act. The Directors present at
a duly called meeting at which a quorum is present may continue to transact business until
adjournment or termination, notwithstanding the withdrawal of enough Directors to leave less than a
quorum.
-11-
15.
Meetings of the Board
(1) The Board may meet for the transaction of business, adjourn and otherwise regulate its
meetings as it sees fit.
(2) Directors may participate in any meeting of the Board by means of such telephone,
electronic or other communication facilities as permit all persons participating in the meeting to
communicate with each other simultaneously and instantaneously, and participation in such a meeting
shall constitute presence in person at such meeting.
(3) Unless otherwise provided in these Bye-Laws, a resolution put to the vote at a meeting of
the Board shall be carried by the affirmative votes of a majority of the Directors present.
16.
Unanimous Written Resolutions
A resolution in writing signed by all of the Directors then in office, which may be in
counterparts, shall be as valid as if it had been passed at a meeting of the Board duly called and
constituted, such resolution to be effective on the date on which the last Director signs the
resolution.
17.
Contracts and Disclosure of Directors Interests
(1) Any Director, or any Directors firm, partner or any company with whom any Director is
associated, may act in any capacity for, be employed by or render services to the Company and such
Director or such Directors firm, partner or company shall be entitled to remuneration as if such
Director were not a Director. Nothing herein contained shall authorize a Director or Directors
firm, partner or company to act as Auditor to the Company.
(2) A Director who is directly or indirectly interested in a contract or proposed contract or
arrangement with the Company or any of its subsidiaries shall declare the nature of such interest
to the Board or any duly appointed committee thereof, whether or not such declaration is required
by law.
(3) Following a declaration being made pursuant to this
Bye-Law 17
, and unless
disqualified by the chairperson of the relevant Board meeting or recused, a Director may vote in
respect of any contract or proposed contract or arrangement in which such Director is interested
and may be counted in the quorum for such meeting.
18.
Remuneration of Directors
The remuneration and benefits (if any) of the Directors shall be determined by the Board or
any duly appointed committee thereof in accordance with applicable law and securities exchange
rules. The Directors may also be paid or reimbursed for all travel, hotel and other expenses
incurred by them in attending and returning from meetings of the Board, any committee appointed by
the Board, general or special meetings of the Company or in connection with the business of the
Company or their duties as Directors generally.
-12-
OFFICERS
19.
Officers of the Company
The Officers of the Company, who may or may not be Directors, may be appointed at any time by
the Board or by such other persons as may be designated by the Board. Any person appointed
pursuant to this
Bye-Law 19
shall hold office for such period and upon such terms as the
Board or, in the case of Officers other than the Chief Executive Officer, as the Chief Executive
Officer may determine and the Board (or the Chief Executive Officer unless otherwise directed by
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.
20.
Remuneration of Officers
The Officers shall receive such remuneration and benefits as the Board or any duly appointed
committee thereof (or, in the case of Officers who are not executive officers as defined under
applicable Rules promulgated under the Exchange Act, as management acting under authority duly
delegated by the Board) may from time to time determine in accordance with applicable law and
securities exchange rules.
21.
Duties of Officers
The Officers shall have such powers and perform such duties in the management, business and
affairs of the Company as may be delegated to them from time to time by the Board or, in the case
of Officers other than the Chief Executive Officer, by the Chief Executive Officer (or by any other
Officer or employee of the Company acting, directly or indirectly, under his direction).
22.
Chairperson and Secretary of Meetings
(1) The Chairperson shall act as chairperson at all meetings of the Shareholders and of the
Board at which he or she is present. In the Chairpersons absence, the Chief Executive Officer or
any other Director or Officer designated in writing by the Chairperson, the Chief Executive Officer
or a majority of the Board shall act as chairperson of the applicable meeting.
(2) The Secretary shall act as secretary at all meetings of the Shareholders and of the Board
and any committee thereof at which he or she is present. In the Secretarys absence, a secretary
shall be appointed by the chairperson of such meeting.
23.
Register of Directors and Officers
The Board shall cause to be kept in one or more books at the registered office of the Company
a Register of Directors and Officers and shall enter therein the particulars required by the Act.
-13-
MINUTES
24.
Obligations of Board to Keep Minutes
(1) The Board shall cause minutes to be duly entered in books provided for the purpose:
(a) of all elections and appointments of Officers;
(b) of the names of the Directors present at each meeting of the Board and of any
committee appointed by the Board; and
(c) of all resolutions and proceedings of general meetings of the Shareholders,
meetings of the Board and meetings of committees appointed by the Board.
(2) Minutes prepared in accordance with the Act and these Bye-Laws shall be kept by the
Secretary at the registered office of the Company.
INDEMNITY
25.
Indemnification and Exculpation of Directors of the Company and Others
(1) The Company shall indemnify in accordance with and to the full extent now or (if greater)
hereafter permitted by Bermuda law, each person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including, without limitation, an action by or in the right of the
Company) (hereinafter, a proceeding), by reason of the fact that he or she is or was a Director
or Officer (or is or was a director or officer of any subsidiary or any predecessor of the Company
or any subsidiary) or is or was serving at the request of the Company (or any subsidiary of the
Company or any predecessor of the Company or any subsidiary) as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise (or any
predecessor of any of such entities), including without limitation any service with respect to
employee benefit plans maintained or sponsored by the Company (or any subsidiary of the Company or
any predecessor of the Company or any subsidiary), whether the basis of such proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer, employee or agent,
against any liability or expense actually and reasonably incurred by such person in respect
thereof. For the avoidance of doubt, the indemnity provided in this
Bye-Law 25
shall
extend, without limitation, to any matter in which an indemnified party may be guilty of
negligence, default, breach of duty or breach of trust in relation to the Company or any of its
subsidiaries, but shall not extend to any matter as to which such indemnified party admits that he
is guilty, or is found, by a court of competent jurisdiction in a final judgment or decree not
subject to appeal, guilty, of any fraud or dishonesty in relation to the Company or any such
subsidiary. In connection with the foregoing, the Company shall advance the expenses of Directors
and Officers in defending any such act, suit or proceeding;
provided
that such advancement
shall be subject to reimbursement to the extent such person shall be found not to be entitled to
such advancement of expenses under Bermuda law. In addition to the foregoing, the Company shall
have the power, to the extent and in the manner permitted by Bermuda law, to indemnify each of its
other
-14-
employees and agents against any liability or expense (including advancement of expenses)
incurred in connection with any proceeding arising by reason of the fact that such person is or was
an employee or agent of the Company (or is or was an employee or agent of any subsidiary or any
predecessor of the Company or any subsidiary) or is or was serving at the request of the Company
(or any subsidiary of the Company or any predecessor of the Company or any subsidiary) as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise (or any predecessor of any of such entities), including without limitation any
service with respect to employee benefit plans maintained or sponsored by the Company (or any
subsidiary of the Company or any predecessor of the Company or any subsidiary).
(2) The Board may authorize the Company to purchase and maintain insurance on behalf of any
person who is or was a Director, Officer, employee or agent of the Company, or is or was serving at
the request of the Company as a Director, Officer, employee or agent of another company,
partnership, joint venture, trust or other enterprise, or in a fiduciary or other capacity with
respect to any employee benefit plan maintained by the Company (or any subsidiary of the Company or
any predecessor of the Company or any subsidiary), against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such, whether or not the
Company would have the power to indemnify him against such liability under the provisions of this
Bye-Law 25
.
(3) Directors, Officers and employees of the Company shall have no personal liability to the
Company or its Shareholders for any action or failure to act to the fullest extent now or (if
greater) hereafter permitted by Bermuda law.
(4) The indemnification, expense reimbursement, exculpation and other provisions provided by
this
Bye-Law 25
shall not be deemed exclusive of any other rights to which the persons
identified in this
Bye-Law 25
may be entitled under any bye-law, agreement, vote of
Shareholders or Directors or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office; shall continue as to a person who has ceased to be a
Director, Officer, employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person; and shall be deemed to be a contractual right of such benefited
Persons.
26.
Waiver of Certain Claims
(1) Each present and future Shareholder agrees to waive any claim or right of action such
Shareholder might have, whether individually or by or in the right of the Company, against any
Director, Officer or employee on account of any action taken by such Director, Officer or employee,
or the failure of such Director, Officer or employee to take any action, in the performance of his
duties with or for the Company (including, for the avoidance of doubt, with respect to the approval
or disapproval of any transaction between the Company and one or more of its Affiliates or the
pursuit of corporate opportunities), in each case to the fullest extent now or (if greater)
hereafter permitted by Bermuda law.
(2) The provisions of this
Bye-Law 26
shall apply to, and for the benefit of, any
person acting as (or with the reasonable belief that he or she will be appointed or elected as) a
-15-
Director, Officer or employee in the reasonable belief that he or she has been so appointed or
elected notwithstanding any defect in such appointment or election and to any person who is no
longer, but at one time was, a Director, Officer or employee.
MEETINGS
27.
Notice of Annual General Meeting of Shareholders
The annual general meeting of Shareholders shall be held in each year other than the year of
incorporation at such time and place as the Chairperson or the Chief Executive Officer may
determine. At least 20 days notice of such meeting shall be given to each Shareholder, stating
the date, place and time at which the meeting is to be held, that the election of Directors will
take place thereat and such additional information as may be required by the Act.
28.
Notice of Special General Meeting
Special general meetings may be called as specified in
Bye-Law 10
upon not less than
twenty days notice (or as otherwise prescribed by the Act), which notice shall state the date,
time, place and such additional information as may be required by the Act or
Bye-Law 10
.
29.
Accidental Omission of Notice of General Meeting
The accidental omission to give notice of a general meeting to, or the non-receipt of notice
of a general meeting by, any Person entitled to receive notice shall not invalidate the proceedings
at that meeting.
30.
Short Notice
Subject to any applicable requirements of the New York Stock Exchange (or any other applicable
stock exchange), a general meeting of the Company shall, notwithstanding that it is called by
shorter notice than that specified in these Bye-Laws, be deemed to have been properly called if it
is so agreed by (i) all of the Shareholders entitled to attend and vote thereat, in the
case of an annual general meeting of Shareholders or (ii) by a majority in number of the
Shareholders having the right to attend and vote at the meeting, being a majority together holding
not less than 95% in nominal value of the shares giving a right to attend and vote thereat, in the
case of a special general meeting.
31.
Postponement of Meetings
The Chairperson or the Chief Executive Officer may, and the Secretary on instruction from the
Chairperson or the Chief Executive Officer shall, postpone any general meeting called in accordance
with the provisions of these Bye-Laws,
provided
that notice of postponement is given to
each Shareholder before the time for such meeting. Fresh notice of the date, time and place for
the postponed meeting shall be given to each Shareholder in accordance with the provisions of these
Bye-Laws.
-16-
32.
Quorum for General Meeting
At the commencement of any general meeting of the Company, two or more Persons present in
person and representing in person or by proxy more than fifty percent (50%) of the issued and
outstanding shares entitled to vote at the meeting shall form a quorum for the transaction of
business,
provided
that, if the Company shall at any time have only one Shareholder, such
one Shareholder present in person or by proxy shall form a quorum for the transaction of business
at any general meeting of the Company held during such time. If the holders of the number of
shares necessary to constitute a quorum shall fail to attend in person or by proxy at the time and
place fixed in accordance with these Bye-Laws for any annual or special general meeting, the
chairperson or a majority in interest of the Shareholders present, in person or by proxy, may
adjourn from time to time without notice other than announcement at the meeting until the holders
of the amount of shares requisite to constitute a quorum shall attend;
provided
that in the
case of any such meeting convened pursuant to requisition of Shareholders, the meeting shall be
cancelled. At any such adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally notified. The Shareholders
present at a duly called meeting at which a quorum is present may continue to transact business
until adjournment, notwithstanding the withdrawal of enough Shareholders to leave less than a
quorum.
33.
Adjournment of Meetings
(1) The chairperson of a general meeting may, with the consent of the majority of the
Shareholders present at any general meeting at which a quorum is present (and shall if so
directed), adjourn the meeting. In addition, the chairperson may adjourn the meeting to another
time and place without such consent or direction if it appears to him that:
(a) it is likely to be impracticable to hold or continue that meeting because of the
number of Shareholders wishing to attend who are not present;
(b) the unruly conduct of persons attending the meeting prevents, or is likely to
prevent, the orderly continuation of the business of the meeting; or
(c) an adjournment is otherwise in the best interests of the Company or is necessary so
that the business of the meeting may be properly conducted.
(2) Unless the meeting is adjourned to a specific date, place and time announced at the
meeting being adjourned, fresh notice of the date, place and time for the resumption of the
adjourned meeting shall be given to each Shareholder entitled to attend and vote thereat in
accordance with the provisions of these Bye-Laws.
34.
Attendance at Meetings
(1) If a majority of the Board shall so determine, Shareholders may participate in any general
meeting by means of such telephone, electronic or other communication facilities as permit all
persons participating in the meeting to communicate with each other simultaneously and
instantaneously, and participation in such a meeting shall constitute presence in person at such
meeting.
-17-
(2) The Board may, and at any general meeting the chairperson of such meeting may, make any
arrangement and impose any requirement or restriction as may be considered appropriate to ensure
the security of a general meeting including, without limitation, requirements for evidence of
identity to be produced by those attending the meeting, the searching of their personal property
and the restriction of items that may be taken into the meeting place. The Board is, and at any
general meeting the chairperson of such meeting is, entitled to refuse entry to a person who
refuses to comply with any such arrangements, requirements or restrictions.
35.
Written Resolutions
(1) Subject to paragraph (4) of this
Bye-Law 35
, anything that may be done by
resolution of the Company in a general meeting or by resolution of a meeting of any class of the
Shareholders of the Company may, without a meeting and without any previous notice being required,
be done by resolution in writing signed by all of the Shareholders who at the date of the
resolution would be entitled to attend the meeting and vote on the resolution, in as many
counterparts as may be necessary.
(2) A resolution in writing made in accordance with this
Bye-Law 35
is as valid as if
it had been passed by the Company in a general meeting or by a meeting of the relevant class of
Shareholders, as the case may be, and any reference in any Bye-Law to a meeting at which a
resolution is passed or to Shareholders voting in favor of a resolution shall be construed
accordingly.
(3) A resolution in writing made in accordance with this
Bye-Law 35
shall constitute
minutes for the purposes of the Act.
36.
Attendance of Directors
The Directors of the Company shall be entitled to receive notice of and to attend any general
meeting.
37.
Voting at Meetings
Subject to the provisions of the Act and except as otherwise provided under these Bye-Laws,
any question proposed for the consideration of the Shareholders at any general meeting shall be
decided by the affirmative votes of a majority of the votes cast in accordance with the provisions
of these Bye-Laws and, in the case of an equality of votes, the resolution shall fail.
38.
Voting by Hand or by Poll
(1) At any general meeting, a resolution put to the vote of the meeting shall be decided on a
show of hands or by a count of votes received in the form of electronic records, unless (before or
on the declaration of the result of the show of hands or count of votes received as electronic
records or on the withdrawal of any other demand for a poll) a poll is demanded by:
(a) the chairman of the meeting or a majority of the Board; or
-18-
(b) at least three (3) Shareholders present in person or represented by proxy; or
(c) any Shareholder or Shareholders present in person or represented by proxy and
holding between them not less than one tenth (1/10) of the total voting rights of all the
Shareholders having the right to vote at such meeting; or
(d) any 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.
(2) 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 or count of votes received as electronic records 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.
(3) 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 or count of votes received as electronic
records, 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.
(4) 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.
(5) A poll demanded on a question of adjournment shall be taken forthwith. A poll demanded on
any other question shall be taken in such manner consistent with the Act as the chairman shall
direct.
(6) 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.
(7) On a poll, votes may be cast either personally or by proxy.
(8) 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.
(9) Where a vote is taken by poll, each Person present and entitled to vote shall be furnished
with a ballot paper on which such Person shall record his or her vote in such manner as shall be
determined at the meeting having regard to the nature of the question on which the vote is taken,
and each ballot paper shall be signed or initialed or otherwise marked so as to identify the voter
and the registered holder in the case of a proxy.
-19-
(10) At the conclusion of any poll, the ballot papers shall be examined and counted by a
committee of one or more inspectors appointed by the Board or the Chief Executive Officer of the
Company prior to the general meeting to act at such meeting as provided hereunder and to make a
written report thereof. If no inspector (or any alternate previously designated by the Board or
the Chief Executive Officer) is able to act at the meeting, the chairperson of the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her ability. In connection
with the applicable poll, the inspectors shall ascertain the number of shares outstanding and the
voting power of each, determine the shares represented at the meeting and the validity of proxies
and ballots, count all votes and ballots, determine and retain for a reasonable period a record of
the disposition of any challenges made to any determination by the inspectors and certify their
determination of the number of shares represented at the meeting and their count of all votes and
ballots. The inspectors may appoint or retain other persons to assist them in the performance of
their duties. The date and time of the opening and closing of the polls during the meeting for
each matter upon which the Shareholders will vote by poll at a meeting shall be announced at the
meeting. No ballot, proxy or vote, nor any revocation thereof or change thereto, shall be accepted
by the inspectors after the closing of the polls. In determining the validity and counting of
proxies and ballots, the inspectors shall be limited to an examination of (i) the proxies, any
envelopes submitted therewith, any information provided by a Shareholder who submits a proxy by
telegram, cablegram or other electronic transmission from which it can be determined that the proxy
was authorized by the Shareholder and (ii) the ballots and (iii) the regular books and records of
the Company.
In addition, the inspectors may also consider other reliable information for the limited
purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their
nominees or similar Persons which represent more votes than the holder of a proxy is authorized by
the record owner to cast or more votes than the Shareholder holds of record. If the inspectors
consider such other reliable information for such purpose, they shall, at the time they make their
certification, specify the precise information considered by them, including the Person or Persons
from whom they obtained the information, when the information was obtained, the means by
which the information was obtained and the basis for the inspectors belief that such
information is accurate and reliable.
39.
Decision of Chairperson
(1) At any general meeting if an amendment shall be proposed to any resolution under
consideration and the chairperson of the meeting shall rule on whether the proposed amendment is
out of order, the proceedings on the substantive resolution shall not be invalidated by any error
in such ruling.
(2) At any general meeting a declaration by the chairperson of the meeting that a question
proposed for consideration has been carried, or carried unanimously, or by a particular majority,
or lost, and an entry to that effect in a book containing the minutes of the proceedings of the
Company shall be conclusive evidence of that fact.
-20-
40.
Instrument of Proxy
(1) Every Shareholder entitled to vote has the right to do so either in person or by one or
more persons authorized by a proxy executed and delivered in accordance with these Bye-Laws.
(2) A person so authorized as a proxy shall be entitled to exercise the same power on behalf
of the grantor of the proxy as the grantor could exercise at a general meeting of the Company.
(3) No proxy shall be valid after eleven months from its date, unless the proxy provides for a
longer period. A proxy shall be revocable unless expressly provided therein to be irrevocable and
the proxy is coupled with an interest sufficient in law to support an irrevocable power.
(4) Subject to paragraph (3) of this
Bye-Law 40
, the instrument appointing a proxy,
together with such other evidence as to its due execution as the Board may from time to time
require, shall be delivered at the registered office of the Company (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, in any document sent therewith) prior to the holding of the relevant meeting or
adjourned meeting at which the individual named in the instrument proposes to vote and, if not so
delivered, the instrument of proxy shall not be treated as valid.
(5) Instruments of proxy shall be in such form as the Board may approve (including, without
limitation, written or electronic form) and the Board may, if it thinks fit, send out with the
notice of any meeting forms of instruments of proxy for use at the meeting. The instrument of
proxy shall be deemed to confer authority to vote on any amendment of a resolution put to the
meeting for which it is given as the proxy thinks fit. The instrument of proxy shall, unless the
contrary is stated therein, be valid as well for any adjournment of the meeting as for the meeting
to which it relates.
(6) A vote given in accordance with the terms of an instrument of proxy shall be valid
notwithstanding the death or unsoundness of mind of the principal subsequent to giving the
proxy but before the vote or revocation of the instrument of proxy or of the authority under
which it was executed.
(7) The decision of the chairperson of any general meeting as to the validity of any
appointment of a proxy shall be final.
41.
Representation of Corporations at Meetings
A corporation or other Person that is not an individual that is a Shareholder may, by written
instrument, authorize any person as it thinks fit to act as its representative at any meeting of
the Shareholders or for all meetings of the Shareholders or for all meetings of the Shareholders
for a certain or determinable period or until revocation and such person so authorized shall be
entitled to exercise the same powers on behalf of such corporation or other such Person as such
corporation or other such Person could exercise if it were an individual Shareholder and such
corporation or other such Person shall be deemed to be present in person as
-21-
a Shareholder at any
such meeting attended by its authorized representative or representatives. Notwithstanding the
foregoing, the chairperson of the meeting may accept such assurances as he or she thinks fit as to
the right of any person to attend and vote at general meetings on behalf of a corporation or other
such Person that is a Shareholder.
VOTES OF SHAREHOLDERS
42.
General
Subject to the rights of the holders of any class or series of preference shares, at any
general 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 in his name in the Register of
Shareholders.
SHARE CAPITAL AND SHARES
43.
Share Capital
The authorised share capital of the Company is 1,070,000,000 divided into 1,050,000,000 common
shares of par value $0.20 each (Common Shares) and 20,000,000 undesignated shares of par value
$0.20 each, which may be issued, without any prior Shareholder approval, as Common Shares or
Preference Shares (Undesignated Shares).
44.
Rights of Shares
(1)
Common Shares
The Common Shares shall, subject to the other provisions of these Bye-Laws, entitle the
holders thereof to the following rights:
(a) 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 holders 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;
(b) 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;
(c) 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
-22-
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.
(2)
Undesignated Shares
The rights attaching to the Undesignated Shares, subject to these Bye-Laws, shall be as follows:
(a) each Undesignated Share shall have attached to it such preferred, qualified or
other special rights, privileges and conditions and be subject to such restrictions, whether
in regard to dividend, return of capital, redemption, conversion into Common Shares or
voting or otherwise, as the Board may determine on or before its allotment;
(b) the Board may allot the Undesignated Shares in more than one series and, if it does
so, may name and designate each series in such manner as it deems appropriate to reflect the
particular rights and restrictions attached to that series, which may differ in all or any
respects from any other series of Undesignated Shares;
(c) the particular rights and restrictions attached to any Undesignated Shares shall be
recorded in a resolution of the Board. The Board may at any time before the allotment of
any Undesignated Share by further resolution in any way amend such rights and restrictions
or vary or revoke its designation. A copy of any such resolution or amending resolution for
the time being in force shall be annexed as an appendix to (but shall not form part of)
these Bye-Laws; and
(d) the Board shall not attach to any Undesignated Share any rights or restrictions
which would alter or abrogate any of the special rights attached to any other class of
series of shares for the time being in issue without such sanction as is required for any
alteration or abrogation of such rights, unless expressly authorised to do so by the rights
attaching to or by the terms of issue of such other class or series.
(3)
Preference Shares
Without limiting the foregoing and subject to the Act, the Company may issue preference shares
(Preference Shares) without any prior Shareholder approval which:
(a) are liable to be redeemed on the happening of a specified event or events or on a
given date or dates and/or;
(b) 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.
The terms and manner of the redemption of any redeemable shares created pursuant to this
Bye-Law 44(3)
shall be as the Board may by resolution determine. The terms of any
redeemable preference shares 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 Act.
-23-
In addition, subject to any special rights conferred on the holders of any share or class of
shares, any Preference Shares 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 Board may determine pursuant to
Bye-Law 44(2)
.
(4) The Board may, at its discretion and without the sanction of a resolution of the
Shareholders, authorise the purchase or 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 or acquired
may be selected in any manner whatsoever, upon such terms as the Board may in its discretion
determine, provided always that such purchase or acquisition is effected in accordance with the
provisions of the Act. The whole or any part of the amount payable on any such purchase may be
paid or satisfied otherwise than in cash, to the extent permitted by the Act. Any shares acquired
may be held as treasury shares in accordance with and subject to the Act.
45.
Modification of Rights
(1) Subject to the Act, all or any of the special rights attached to any class of shares
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 three-quarters of the issued shares of
that class or with the sanction of a resolution passed by the holders of not less than
three-quarters of the issued shares of that class 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 at least
three-quarters 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, such one
Shareholder present in person or by proxy shall constitute the necessary quorum.
(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:
(a) the creation or issue of further shares ranking pari passu with them;
(b) 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
(c) the purchase or redemption by the Company of any of its own shares.
46.
Shares
(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
-24-
Persons, at
such times and for such consideration and upon such terms and conditions as the Board may
determine.
(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.
(3) 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 Act, any
such commission or brokerage may be satisfied by the payment of cash or by the allotment of fully
or partly paid shares or partly in one way and partly in the other.
(4) 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.
47.
Registered Holder of Shares
(1) The Company shall be entitled to treat the registered holder of any share as the absolute
owner thereof and, accordingly, shall not be bound to recognize any equitable or other claim to, or
interest in, such share on the part of any other Person.
(2) Any dividend, interest or other moneys payable in cash in respect of shares may be paid by
check or draft sent through the post directed to the Shareholder at such Shareholders address as
recorded in the Register of Shareholders or, in the case of joint holders, to such address of the
holder first named in the Register of Shareholders, or (subject to applicable law) to such Person
and to such address as such holder or joint holders may in writing direct. If two or
more Persons are registered as joint holders of any shares, any one can give an effectual
receipt for any dividend paid in respect of such shares.
48.
Death of a Joint Holder
Where two or more Persons are registered as joint holders of a share or shares then, in the
event of the death of any joint holder or holders, the remaining joint holder or holders shall be
absolutely entitled to such share or shares and the Company shall recognize no claim in respect of
the estate of any joint holder except in the case of the last survivor of such joint holders.
49.
Share Certificates
(1) Every Shareholder shall be entitled to a certificate under the seal of the Company (or a
facsimile thereof) specifying the number and, where appropriate, the class or series of shares held
by such Shareholder and whether the same are fully paid up and, if not, how much has been paid
thereon. The Company may determine, either generally or in a particular case, that any or all
signatures on certificates may be printed thereon or affixed by mechanical means.
-25-
Notwithstanding
Bye-Law 76
, the Company may determine that a share certificate need not be signed on behalf
of the Company or that the seal of the Company need not be attested.
(2) The Company shall be under no obligation to complete and deliver a share certificate
unless specifically called upon to do so by the Person to whom such shares have been allotted.
(3) If any such certificate shall be proved to the satisfaction of the Company to have been
worn out, lost, mislaid or destroyed, the Company may cause a new certificate to be issued and
request an indemnity for the lost certificate if it sees fit.
50.
Calls on Shares
(1) The Board may from time to time make such calls as it thinks fit upon the Shareholders in
respect of any monies unpaid on the shares allotted to or held by such Shareholders and, if a call
is not paid on or before the day appointed for payment thereof, the Shareholder may, at the
discretion of the Board, be liable to pay the Company interest on the amount of such call at such
rate as the Board may determine, from the date when such call was payable up to the actual date of
payment. The joint holders of a share shall be jointly and severally liable to pay all calls in
respect thereof.
(2) The Board may, on the issue of shares, differentiate between the holders as to the amount
of calls to be paid and the times of payment of such calls.
(3) Any sum that, by the terms of allotment of a share, becomes payable upon issue or at any
fixed date, whether on account of the nominal value of the share or by way of premium, shall for
all of the purposes of these Bye-Laws be deemed to be a call duly made and payable, on the date on
which, by the terms of issue, the same becomes payable and, in case of non-payment, all of the
relevant provisions of these Bye-Laws as to payment of interest, costs, charges and expenses,
forfeiture or otherwise shall apply as if such sum had become payable by virtue of a call duly made
and notified.
(4) The Company may accept from any Shareholder the whole or a part of the amount remaining
unpaid on any shares held by him, although no part of that amount has been called up.
51.
Forfeiture of Shares
(1) If any Shareholder fails to pay, on the day appointed for payment thereof, any call in
respect of any share allotted to or held by such Shareholder, the Board may, at any time thereafter
during such time as the call remains unpaid, direct the Secretary to forward to such Shareholder a
notice in the form (or as near thereto as circumstances admit) set forth in
Schedule A
hereto.
(2) If the requirements of such notice are not complied with, any such share may at any time
thereafter before the payment of such call and the interest due in respect thereof be forfeited by
a resolution of the Board to that effect, and such share shall thereupon become the property of the
Company and may be disposed of as the Board shall determine.
-26-
(3) A Shareholder whose share or shares have been forfeited as aforesaid shall,
notwithstanding such forfeiture, be liable to pay to the Company all calls owing on such share or
shares at the time of the forfeiture and all interest due thereon.
(4) The Board may accept the surrender of any shares that it is in a position to forfeit on
such terms and conditions as may be agreed. Subject to those terms and conditions, a surrendered
share shall be treated as if it has been forfeited.
INTERESTED SHAREHOLDERS
52.
Limitations on Business Combinations
.
Notwithstanding anything contained herein to the contrary, the Company shall not engage in any
Business Combination with any Interested Shareholder for a period of 3 years following the time
that such Shareholder became an Interested Shareholder, unless: (a) prior to such time the Board
approved either the Business Combination or the transaction which resulted in the Shareholder
becoming an Interested Shareholder; (b) upon consummation of the transaction which resulted in the
Shareholder becoming an Interested Shareholder, the Interested Shareholder Beneficially Owned at
least 85% of the total voting stock of the Company outstanding at the time the transaction
commenced, excluding for purposes of determining the total voting stock outstanding (but not the
outstanding voting stock Beneficially Owned by the Interested Shareholder) those shares
Beneficially Owned (i) by persons who are Directors and also Officers and (ii) employee stock plans
in which employee participants do not have the right to determine confidentially whether shares
held subject to the plan will be tendered in a tender or exchange offer; or (c) at or subsequent to
such time the Business Combination is approved by the Board and authorized at an annual general
meeting or special general meeting of Shareholders, and not by written consent, by the affirmative
vote of at least two-thirds of the outstanding voting stock which is not Beneficially Owned by the
Interested Shareholder.
53.
Certain Definitions
(1) Associate has the meaning ascribed to such term in Rule 12b-2 of the Exchange Act.
(2) As used in
Bye-Laws 52-53
, a Person shall be deemed the Beneficial Owner of and
shall be deemed to beneficially own any securities:
(a) which such Person or any of such Persons Affiliates or Associates beneficially
owns, directly or indirectly;
(b) which such Person or any of such Persons Affiliates or Associates has (i) the
right to acquire (whether such right is exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members with respect to a
bona
fide
public offering of securities), or upon the exercise of conversion
rights, exchange rights, rights, warrants or options, or otherwise;
provided
,
however
, that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a tender or exchange offer made by or on
behalf of such Person or
-27-
any of such Persons Affiliates or Associates until such tendered
securities are accepted for purchase or exchange; or (ii) the right to vote pursuant to any
agreement, arrangement or understanding;
provided
,
however
, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own, any security if the
agreement, arrangement or understanding to vote such security (x) arises solely from a
revocable proxy or consent given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (y) is not also then reportable on Schedule 13D under
the Exchange Act; or
(c) which are beneficially owned, directly or indirectly, by any other Person with
which such Person or any of such Persons Affiliates or Associates has any agreement,
arrangement or understanding (other than customary agreements with and between underwriters
and selling group members with respect to a bona fide public offering of securities) for the
purpose of acquiring, holding, voting (except to the extent contemplated by the proviso to
clause (ii) of the preceding subsection (b)) or disposing of any securities of the Company.
(d) Notwithstanding anything in this definition of Beneficial Ownership to the
contrary, the phrase then outstanding, when used with reference to a Persons Beneficial
Ownership of securities of the Company, shall mean the number of such securities then issued
and outstanding together with the number of such securities not then actually issued and
outstanding which such Person would be deemed to own beneficially hereunder.
(3) Business combination means any:
(a) merger, amalgamation, scheme of arrangement or consolidation of the Company or any
direct or indirect majority-owned subsidiary of the Company with (i) the
Interested Shareholder, or (ii) with any other corporation, partnership, unincorporated
association or other entity if the merger or consolidation is caused by the Interested
Shareholder;
(b) sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions), except proportionately as a Shareholder, to or
with the Interested Shareholder, whether as part of a dissolution or otherwise, of assets of
the Company or of any direct or indirect majority-owned subsidiary of the Company which
assets have an aggregate market value equal to 10% or more of either the aggregate market
value of all the assets of the Company determined on a consolidated basis or the aggregate
market value of all the outstanding stock of the Company;
(c) transaction which results in the issuance or transfer by the Company or by any
direct or indirect majority-owned subsidiary of the Company of any stock of the Company or
of such subsidiary to the Interested Shareholder, except (i) Pursuant to the exercise,
exchange or conversion of securities exercisable for, exchangeable for or convertible into
stock of such corporation or any such subsidiary which securities were outstanding prior to
the time that the Interested Shareholder became such, (ii) pursuant to
-28-
a dividend or
distribution paid or made, or the exercise, exchange or conversion of securities exercisable
for, exchangeable for or convertible into stock of such corporation or any such subsidiary
which security is distributed, pro rata to all holders of a class or series of stock of such
corporation subsequent to the time the Interested Shareholder became such; (iii) pursuant to
an exchange offer by the Company to purchase stock made on the same terms to all holders of
said stock; or (iv) any issuance or transfer of stock by the Company; provided however, that
in no case under items (i)-(iv) of this subparagraph shall there be an increase in the
Interested Shareholders proportionate share of the stock of any class or series of the
Company or of the voting stock of the Company;
(d) transaction involving the Company or any direct or indirect majority-owned
subsidiary of the Company which has the effect, directly or indirectly, of increasing the
proportionate share of the stock of any class or series, or securities convertible into the
stock of any class or series, of the Company or of any such subsidiary which is Beneficially
Owned by the Interested Shareholder, except as a result of immaterial changes due to
fractional share adjustments or as a result of any purchase or redemption of any shares of
stock not caused, directly or indirectly, by the Interested Shareholder; or
(e) receipt by the Interested Shareholder of the benefit, directly or indirectly
(except proportionately as a Shareholder of such corporation), of any loans, advances,
guarantees, pledges or other financial benefits (other than those expressly permitted in
subparagraphs (a)-(d) of this paragraph) provided by or through the Company or any direct or
indirect majority-owned subsidiary.
(4) Interested Shareholder means any Person (other than the Company and any direct or
indirect majority-owned subsidiary of the Company) that (i) is the Beneficial Owner of 15% or more
of the outstanding voting stock of the Company, or (ii) is an Affiliate or Associate of the Company
and was the Beneficial Owner of 15% or more of the outstanding voting stock
of the Company at any time within the 3-year period immediately prior to the date on which it
is sought to be determined whether such Person is an Interested Shareholder, and the Affiliates and
Associates of such Person; provided, however, that the term Interested Shareholder shall not
include (x) any Person who becomes an Interested Shareholder inadvertently and (i) as soon as
practicable divests itself of Beneficial Ownership of sufficient shares so that the Shareholder
ceases to be an Interested Shareholder and (ii) would not, at any time within the 3-year period
immediately prior to a Business Combination between the Company and such Shareholder, have been an
Interested Shareholder but for the inadvertent acquisition of ownership; or (y) any Person whose
Beneficial Ownership of shares in excess of the 15% limitation set forth herein is the result of
action taken solely by the Company;
provided
that such Person shall be an Interested
Shareholder if thereafter such Person acquires additional shares of voting stock of the Company,
except as a result of further corporate action not caused, directly or indirectly, by such Person;
provided
further
that no savings, profit sharing, stock bonus or employee stock
ownership plan or plans established or sponsored by the Company (or any subsidiary of the Company
or any predecessor of the Company or any subsidiary) and qualified under Section 401(a) of the
Internal Revenue Code of 1986, as amended, or any comparable provisions of any non-U.S. law, which
holds Common Shares on behalf of participating employees and their beneficiaries with the right
-29-
to
instruct the trustee how to vote such Common Shares with respect to all matters submitted to
Shareholders shall not be deemed to be an Interested Shareholder.
REGISTER OF SHAREHOLDERS
54.
Contents of Register of Shareholders
The Board shall cause to be kept in one or more books a Register of Shareholders and shall
enter therein the particulars required by the Act.
55.
Inspection of Register of Shareholders
The Register of Shareholders shall be open to inspection at the registered office of the
Company on every Business Day, subject to such reasonable restrictions as the Company may impose,
so that not less than two hours in each Business Day be allowed for inspection. The Register of
Shareholders may, after notice has been given by advertisement in an appointed newspaper to that
effect, be closed for any time or times not exceeding in the whole thirty days in each year.
56.
Determination of Record Dates
Notwithstanding any other provision of these Bye-Laws, the Board may fix any date as the
record date for:
(a) determining the Shareholders entitled to receive any dividend or distribution; and
(b) determining the Shareholders entitled to receive notice of and to vote at any
general meeting of the Company.
TRANSFER OF SHARES
57.
Instrument of Transfer
(1) Subject to paragraph (4) of
Bye-Law 58
, an instrument of transfer shall be in the
form (or as near thereto as circumstances admit) set forth in
Schedule B
hereto or in such
other common form as the Company may accept. Such instrument of transfer shall be signed by or on
behalf of the transferor and transferee,
provided
that, in the case of a fully paid share,
the Company may accept the instrument signed by or on behalf of the transferor alone. The
transferor shall be deemed to remain the holder of such share until the same has been transferred
to the transferee in the Register of Shareholders.
(2) The Company may refuse to recognize any instrument of transfer unless it is accompanied by
the certificate in respect of the shares to which it relates and by such other evidence as the
Company may reasonably require to show the right of the transferor to make the transfer.
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58.
Restrictions on Transfer
(1) Unless otherwise required by any applicable requirements of the New York Stock Exchange
(or any other applicable stock exchange), the Company (i) may decline to approve or to register any
transfer of any share if a written opinion from counsel acceptable to the Company shall not have
been obtained to the effect that registration of such shares under the U.S. Securities Act of 1933,
as amended, is not required and (ii) shall decline to approve or to register any transfer of any
share if the transferee shall not have been approved by applicable governmental authorities if such
approval is required or if not in compliance with applicable consent, authorization or permission
of any governmental body or agency in Bermuda.
(2) If the Company refuses to register a transfer of any share, the Secretary shall send, or
procure that there shall be sent, within one month after the date on which the transfer was lodged
with the Company, to the transferor and transferee notice of the refusal.
(3) The registration of transfers may be suspended at such times and for such periods as the
Company may from time to time determine,
provided
always that such registration shall not
be suspended for more than 45 days in any year.
(4) Shares may be transferred without a written instrument if transferred by an appointed
agent or otherwise in accordance with the Act.
TRANSMISSION OF SHARES
59.
Representative of Deceased Shareholder
In the case of the death of a Shareholder, the survivor or survivors where the deceased
Shareholder was a joint holder, and the legal personal representatives of the deceased Shareholder
where the deceased Shareholder was a sole holder, shall be the only persons recognized by the
Company as having any title to the deceased Shareholders interest in the shares. Nothing herein
contained shall release the estate of a deceased joint holder from any liability in respect of any
share that had been jointly held by such deceased Shareholder with other persons. Subject to the
provisions of the Act, for the purpose of this
Bye-Law 59
, legal personal representative
means the executor or administrator of a deceased Shareholder or such other Person as the Company
may decide as being properly authorized to deal with the shares of a deceased Shareholder.
60.
Registration on Death or Bankruptcy
Any Person becoming entitled to a share in consequence of the death or bankruptcy of any
Shareholder may be registered as a Shareholder upon such evidence as the Company may deem
sufficient or may elect to nominate another Person to be registered as a transferee of such share,
and in such case such Person becoming entitled shall execute in favor of such nominee an instrument
of transfer in the form (or as near thereto as circumstances admit) set forth in
Schedule C
hereto. On the presentation thereof to the Company, accompanied by such evidence as the Company
may require to prove the title of the transferor, the transferee shall be registered
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as a
Shareholder,
provided
that the Company shall, in either case, have the same right to
decline or suspend registration as it would have had in the case of a transfer of the share by such
Shareholder before such Shareholders death or bankruptcy, as the case may be.
DIVIDENDS AND OTHER DISTRIBUTIONS
61.
Declaration of Dividends by the Board
(1) The Board may, subject to these Bye-Laws and in accordance with the Act, declare a
dividend to be paid to the Shareholders in proportion to the number of shares held by them, and
such dividend may be paid in cash or wholly or partly in specie in which case the Board may fix the
value for distribution in specie of any assets. No unpaid dividend shall bear interest as against
the Company.
(2) The Company may pay dividends in proportion to the amount paid up on each share where a
larger amount is paid up on some shares than on others.
62.
Other Distributions
The Board may declare and make such other distributions (in cash or in specie) to the
Shareholders as may be lawfully made out of the assets of the Company. No unpaid distribution
shall bear interest as against the Company.
63.
Reserve Fund
The Board may from time to time before declaring a dividend set aside, out of the surplus or
profits of the Company, such sum as it thinks proper as a reserve to be used to meet contingencies
or for equalizing dividends or for any other special purpose.
64.
Deduction of Amounts Due to the Company
The Board may deduct from the dividends or distributions payable to any Shareholder all monies
due from such Shareholder to the Company on account of calls.
CAPITALIZATION
65.
Issue of Bonus Shares: Capitalization of Profits
(1) The Board may resolve to capitalize any part of the amount for the time being standing to
the credit of any of the Companys share premium or other reserve accounts or to the credit of the
profit and loss account or otherwise available for distribution by applying such sum in paying up
unissued shares to be allotted as fully paid bonus shares
pro
rata
to the
Shareholders.
(2) 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
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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 65
, a share premium account may be applied only in paying
up of unissued shares to be issued to such Shareholders credited as fully paid. Where any
difficulty arises in regard to any distribution under this
Bye-Law 65
, 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.
ACCOUNTS AND FINANCIAL STATEMENTS
66.
Records of Account
The Board shall cause to be kept proper records of account with respect to all transactions of
the Company and in particular with respect to:
(a) all sums of money received and expended by the Company and the matters in respect
of which the receipt and expenditure relates;
(b) all sales and purchases of goods by the Company; and
(c) the assets and liabilities of the Company.
Such records of account shall be kept at the registered office of the Company or, subject to
the Act, at such other place as the Company may determine and shall be available for inspection by
the Directors during normal business hours.
67.
Financial Year End
The financial year end of the Company may be determined by resolution of the Board and failing
such resolution shall be 31st December of each year.
68.
Financial Statements
Subject to any rights to waive laying of accounts pursuant to the Act, financial statements as
required by the Act shall be laid before the Shareholders at the annual general meeting of
Shareholders.
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AUDIT
69.
Appointment of Auditor
The Company shall appoint Auditors to hold office for such period and otherwise as in
accordance with the Act. Whenever a casual vacancy occurs in the office of the Auditors, the Audit
Committee may appoint Auditors to hold office until the close of the next annual general meeting.
No Auditor may be a Shareholder and no Director, Officer or employee of the Company shall, during
his or her continuance in office, be eligible to act as an Auditor of the Company.
70.
Remuneration of Auditor
Unless fixed by the Company in a general meeting, the remuneration of the Auditor shall be as
determined by the Audit Committee.
71.
Report of the Auditor
Subject to any rights to waive laying of accounts or appointment of an Auditor pursuant to
provisions of the Act, the accounts of the Company shall be audited by the Auditor at least once in
every year.
NOTICES
72.
Notices to Shareholders of the Company
A notice may be given by the Company to any Shareholder either by delivering it to such
Shareholder in person or by sending it to such Shareholders address in the Register of
Shareholders or to such other address given for the purpose. For the purposes of this
Bye-Law
72
, a notice may be sent by mail, courier service, facsimile, email or other mode of
representing words in a legible form.
73.
Notices to Joint Shareholders
Any notice required to be given to a Shareholder shall, with respect to any shares held
jointly by two or more Persons, be given to whichever of such Persons is named first in the
Register of Shareholders and notice so given shall be sufficient notice to all of the holders of
such shares.
74.
Service and Delivery of Notice
Any notice shall be deemed to have been served at the time when the same would be delivered in
the ordinary course of transmission (which shall be deemed to be two calendar days from deposit in
the case of mail) and, in proving such service, it shall be sufficient to prove that the notice was
properly addressed and prepaid, if mailed, and the time when it was mailed, delivered to the
courier or transmitted by facsimile, email, or such other method, as the case may be.
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SEAL OF THE COMPANY
75.
The Seal
The seal of the Company shall be in such form as the Board may from time to time determine.
The Board may adopt one or more duplicate seals.
76.
Manner in which Seal is to be Affixed
Subject to
Bye-Law 48
, the seal of the Company shall not be affixed to any instrument
except attested by the signature of a Director and the Secretary or any two Directors, or any
person appointed by the Board for the purpose,
provided
that any Director, Officer or
Resident Representative, may affix the seal of the Company attested by such Director, Officer or
Resident Representatives signature to any authenticated copies of these Bye-Laws, the
incorporating
documents of the Company, the minutes of any meetings or any other documents required to be
authenticated by such Director, Officer or Resident Representative. Any such signature may be
printed or affixed by mechanical means on any share certificate, debenture, share or other security
certificate.
WINDING-UP
77.
Winding-Up/Distribution by Liquidator
If the Company shall be wound up, the liquidator may, with the sanction of a resolution of the
Shareholders, divide amongst the Shareholders in specie or in kind the whole or any part of the
assets of the Company (whether they shall consist of property of the same kind or not) and may, for
such purpose, set such value as he deems fair upon any property to be divided as aforesaid. The
liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon
such trusts as the liquidator shall think fit for the benefit of the Shareholders,
provided
that no Shareholder shall be compelled to accept any shares or other securities or assets whereon
there is any liability.
ALTERATION OF BYE-LAWS
78.
Alteration of Bye-Laws
No Bye-Law shall be rescinded, altered or amended and no new Bye-Law shall be made until the same
has been approved by a resolution of the Board and by a resolution of the Shareholders;
provided
that (i) the approval of such resolution of the Shareholders with respect to any
such rescission, alteration or amendment of, or the adoption of any Bye-Law or provision
inconsistent with,
Bye-Laws 8
,
10
,
11
,
12
,
35
,
44
,
52
and
53
, this
Bye-Law 78
or any material defined term used in any such
Bye-Laws shall require the affirmative vote of the holders of at least three-quarters of the total
combined voting power of all issued and outstanding shares of the Company, and (ii) any such
rescission, alteration or amendment of, or the adoption of any Bye-Law or provision inconsistent
with,
Bye-Law 25
or
26
or any material defined term used in such Bye-Laws shall not
affect the waiver of any claim or right of action with respect to past acts or omissions.
-35-
Schedule A
(Bye-Law 51)
NOTICE OF LIABILITY TO FORFEITURE FOR NON PAYMENT OF CALL
You have failed to pay the call of [amount of call] made on the day of ,
20 , in respect of the [number] share(s) ([numbers in figures]) standing in your name in the
Register of Shareholders of the Company, on the day of , 20 , the day appointed
for payment of such call. You are hereby notified that unless you pay such call together with
interest thereon at the rate of ___% per annum computed from the said day of , 20
, on or before the day of
, 20 at the place of business of the Company, the share(s) will be liable to be forfeited.
Dated this day of , 20
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[Signature of Secretary]
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By order of the Board
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Schedule B
(Bye-Law 57)
TRANSFER OF A SHARE OR SHARES
FOR VALUE RECEIVED
[amount]
[transferor]
Hereby sell assign and transfer unto
[transferee]
Of
[address]
[number of shares]
shares of
[name of Company]
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Dated:
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(Transferor)
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In the presence of:
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(Witness)
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(Transferor)
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In the presence of:
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(Witness)
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Schedule C
(Bye-Law 60)
TRANSFER BY A PERSON
BECOMING ENTITLED ON DEATH/BANKRUPTCY OF A SHAREHOLDER
I/We having become entitled in consequence of the [death/bankruptcy] of [name of the
Shareholder] to [number] share(s) standing in the register of Shareholders of [Company] in the name
of the said [name of Shareholder] instead of being registered myself/ourselves elect to have [name
of transferee] (the Transferee) registered as a transferee of such share(s) and I/we do hereby
accordingly transfer the said share(s) to the Transferee to hold the same unto the Transferee his
or her executors administrators and assigns subject to the conditions on which the same were held
at the time of the execution thereof; and the Transferee does hereby agree to take the said
share(s) subject to the same conditions.
WITNESS our hands this day of , 20
Signed by the above-named
[Person or Persons entitled]
in the presence of:
Signed by the above-named
[transferee] in the presence of: