Exhibit 3.3

 

BYE-LAWS OF

 

KOSMOS ENERGY LTD.

 

 

TABLE OF CONTENTS

 

Interpretation
1.	Definitions	1
Shares
2.	Power to Issue Shares	3
3.	Rights Attaching to Shares	4
4.	Power of the Company to Purchase its Shares	6
5.	Fractional Shares	6
6.	Calls on Unpaid Shares and Forfeiture of Shares	6
Alteration of Share Capital
7.	Power to Alter Capital	8
8.	Variation of Rights Attaching to Shares	8
Dividends and Capitalisation
9.	Dividends	8
10.	Method of Payment	9
11.	Capitalisation	10
Meetings of Members
12.	Annual General Meetings	10
13.	Special General Meetings	10
14.	Notice	10
15.	Giving Notice	12
16.	Notice of Nominations and Member Business	12
17.	Postponement or Cancellation of General Meeting	16
18.	Electronic Participation and Security at General Meetings	16
19.	Quorum at General Meetings	17
20.	Organization	17
21.	Voting on Resolutions	17
22.	Power to Demand a Vote on a Poll	18
23.	Voting by Joint Holders of Shares	19
24.	Instrument of Proxy	20
25.	Representation of Corporate Member	21
26.	Adjournment of General Meeting	21
27.	Action by Written Resolutions Without a General Meeting	22
28.	Directors Attendance at General Meetings	23
Directors and Officers
29.	Election of Directors	23
30.	Classes and Term of Office of Directors	24
31.	Removal of Directors	24
32.	Vacancy in the Office of Director	25
33.	Remuneration of Directors	25
34.	Defect in Appointment	26
35.	General Powers of Directors	26
36.	Conflicts of Interest	27
37.	Appointment of Officers	28
38.	Appointment of Secretary	28
39.	Duties of Officers	28
40.	Removal of Officers	28
41.	Register of Directors and Officers	28
42.	Indemnification and Exculpation of Directors and Officers	28
Meetings of the Board of directors
43.	Board Meetings	31
44.	Notice of Board Meetings	31
45.	Quorum at Board Meetings; Manner of Acting	32
46.	Board to Continue in the Event of Vacancy	33
47.	Chairman to Preside	33
48.	Electronic Participation in Meetings	33
49.	Written Resolutions	33
50.	Validity of Prior Acts of the Board	33
Corporate Records
51.	Minutes	33
52.	Place Where Corporate Records Kept	34
53.	Form and Use of Seal	34
Accounts
54.	Books of Account	34
55.	Financial Year End	34
Audits
56.	Annual Audit	35

 

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57.	Appointment of Auditor	35
58.	Remuneration of Auditor	35
59.	Duties of Auditor	35
60.	Access to Records	35
61.	Financial Statements	35
62.	Distribution of Auditor’s Report	36
63.	Vacancy in the Office of Auditor	36
Business Combinations
64.	Amalgamation	36
65.	Sales of All or Substantially All Assets	36
Voluntary Winding-Up and Dissolution
66.	Winding-Up	37
Corporate Opportunities
67.	Corporate Opportunities	37
Changes to Constitution
68.	Changes to Bye-laws	39
69.	Discontinuance	39
Registration Of Shares and Share Certificates
70.	Register of Members	40
71.	Registered Holder Absolute Owner	40
72.	Transfer and Transmission of Registered Shares	40
73.	Share Certificates	42
Annex A		44

 

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INTERPRETATION

 

1.                                       Definitions

 

1.1                                In these Bye-laws (other than Annex A hereto), the following words and expressions shall, where not inconsistent with the context, have the following meanings, respectively:

 

Act                                                                                                                                                                                                                             the Companies Act 1981 as amended from time to time;

 

Blackstone                                                                                                                                                                                      Blackstone Capital Partners (Cayman) IV L.P., Blackstone Capital Partners (Cayman) IV-A L.P., Blackstone Family Investment Partnership (Cayman) IV-A L.P., Blackstone Family Investment Partnership (Cayman) IV-A SMD L.P., and Blackstone Participation Partnership (Cayman) IV L.P.;

 

Board                                                                                                                                                                                                                 the board of directors appointed or elected pursuant to these Bye-laws and acting by resolution in accordance with the Act and these Bye-laws or the directors present at a meeting of directors at which there is a quorum;

 

Chairman                                                                                                                                                                                               the chairman of the Board;

 

Company                                                                                                                                                                                              the company for which these Bye-laws are approved and confirmed, as the name of such company may be changed from time to time;

 

Effective Date                                                                                                                                                                      the first date on which Warburg Pincus and their affiliates and Blackstone and their affiliates no longer constitute a group that beneficially owns more than 50% of the outstanding voting power of the Company;

 

Member                                                                                                                                                                                                     each person registered in the Register of Members as the holder of shares in the Company and, when two or more persons are so registered as joint holders of shares, means the person whose name stands first in the Register of Members as one of such joint holders or all of such persons, as the context so requires;

 

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Officer                                                                                                                                                                                                             any person, including the Secretary, appointed by the Board to hold an office in the Company;

 

Register of Directors and Officers                                                               the register of directors and Officers referred to in these Bye-laws;

 

Register of Members                                                                                                                                  the register of Members referred to in these Bye-laws;

 

Resident Representative                                                                                                               any person appointed to act as resident representative and includes any deputy or assistant resident representative;

 

Securities Exchange Act of 1934                                                                       the United States Securities Exchange Act of 1934, as amended from time to time, and any rules and regulations thereunder;

 

Secretary                                                                                                                                                                                               the person appointed to perform any or all of the duties of secretary of the Company and includes any deputy or assistant secretary and any person appointed by the Board to perform any of the duties of the Secretary;

 

Treasury Share                                                                                                                                                                a share of the Company that was or is treated as having been acquired and held by the Company and has been held continuously by the Company since it was so acquired and has not been cancelled; and

 

Warburg Pincus                                                                                                                                                          Warburg Pincus International Partners, L.P., Warburg Pincus Netherlands International Partners I, C.V., WP-WPIP Investors, L.P., Warburg Pincus Private Equity VIII, L.P., Warburg Pincus Netherlands Private Equity VIII I, C.V., WP-WP VIII Investors, L.P.

 

1.2                                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 genders;

 

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(c)                                   words importing persons include companies, associations or bodies of persons whether corporate or not;

 

(d)                                  the words:

 

(i)                                      “may” shall be construed as permissive; and

 

(ii)                                   “shall” shall be construed as imperative;

 

(e)                                   the word “include” and its cognates shall be deemed to be followed by “without limitation”; and

 

(f)                                     unless otherwise provided herein, words or expressions defined in the Act shall bear the same meaning in these Bye-laws.

 

1.3                                For so long as any of Blackstone, Warburg Pincus or their respective affiliates have the right to designate at least one director pursuant to the provisions set forth in Annex A hereto, such provisions shall be incorporated into these Bye-laws as if set forth herein in full, and these Bye-laws shall be interpreted and applied in a manner consistent with the terms of Annex A.

 

1.4                                In these Bye-laws 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 visible form.

 

1.5                                Headings used in these Bye-laws are for convenience only and are not to be used or relied upon in the construction hereof.

 

SHARES

 

2.                                       Power to Issue Shares

 

2.1                                Subject to these Bye-laws and without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares, the Board shall have the power to issue any unissued shares on such terms and conditions as it may determine.

 

2.2                                Without limitation to the provisions of Bye-law 3, subject to the Act, any Preference Shares may be issued or converted into shares that (at a determinable date or at the option of the Company or the holder) are liable to be redeemed on such terms and in such manner as may be determined by the Board.

 

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3.                                       Rights Attaching to Shares

 

3.1                                At the date these Bye-laws are adopted, the share capital of the Company is divided into two classes: (i) 2,000,000,000 common shares of par value US$0.01 each (the “Common Shares”) and (ii) 200,000,000 preference shares of par value US$0.01 each (the “Preference Shares”).

 

3.2                                The holders of Common Shares shall, subject to these Bye-laws (including the rights attaching to any Preference Shares):

 

(a)                                   be entitled to one vote per share;

 

(b)                                  be entitled to such dividends and other distributions as the Board may from time to time declare;

 

(c)                                   in the event of a liquidation, dissolution or winding up of the Company, whether voluntary or involuntary or for the purpose of a reorganisation or otherwise or upon any distribution of capital, be entitled to the surplus assets of the Company; and

 

(d)                                  generally be entitled to enjoy all of the rights attaching to shares.

 

3.3                                The Board is authorised to provide for the issuance of the Preference Shares in one or more series, and to establish from time to time the number of shares to be included in such series, and to fix the terms, including designation, powers, preferences, rights, qualifications, limitations and restrictions of the shares of each such series.  Such matters and the issuance of such Preference Shares and the amendment of the terms of any Preference Shares shall not be deemed to vary the rights attached to the Common Shares or, subject to the terms of any other series of Preference Shares, to vary the rights attached to any other series of Preference Shares).

 

The authority of the Board with respect to each series shall include determination of the following:

 

(a)                                   the number of shares constituting that series and the distinctive designation of that series;

 

(b)                                  the dividend rate on the shares of that series, whether dividends shall be cumulative and, if so, from which date or dates, and the relative rights of priority, if any, of the payment of dividends on shares of that series;

 

(c)                                   whether that series shall have voting rights, in addition to the voting rights provided by law, and if so, the terms of such voting rights;

 

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(d)                                  whether that series shall have conversion or exchange privileges (including conversion into Common Shares), and, if so, the terms and conditions of such conversion or exchange, including provision for adjustment of the conversion or exchange rate in such events as the Board shall determine;

 

(e)                                   whether or not the shares of that series shall be redeemable or repurchaseable, and, if so, the terms and conditions of such redemption or repurchase, including the manner of selecting shares for redemption or repurchase if less than all shares are to be redeemed or repurchased, whether such shares are redeemable or repurchaseable at the option of the Company or of the holder of such shares, the date or dates upon or after which they shall be redeemable or repurchaseable, and the amount per share payable in case of redemption or repurchase, which amount may vary under different conditions and at different redemption or repurchase dates;

 

(f)                                     whether that series shall have a sinking fund for the redemption or repurchase of shares of that series, and, if so, the terms and amount of such sinking fund;

 

(g)                                  the right of the shares of that series to the benefit of conditions and restrictions upon the creation of indebtedness of the Company or any subsidiary, upon the issue of any additional shares (including additional shares of such series or any other series) and upon the payment of dividends or the making of other distributions on, and the purchase, redemption or other acquisition by the Company or any subsidiary of any issued shares of the Company;

 

(h)                                  the rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Company, and the relative rights of priority, if any, of payment in respect of shares of that series; and

 

(i)                                      any other relative, participating, optional or other special rights, qualifications, limitations or restrictions of that series.

 

3.4                                Any Preference Shares of any series which have been redeemed (whether through the operation of a sinking fund or otherwise) or which, if convertible or exchangeable, have been converted into or exchanged for shares of any other class or classes or other security shall have the status of authorised and unissued Preference Shares of the same series and may be reissued as a part of the series of which they were originally a part or may be reclassified and reissued as part of a new series of Preference Shares to be created by resolution or resolutions of the Board or as part of any other series of Preference Shares, all subject to the conditions and the restrictions on issuance set forth in the resolution or resolutions adopted by the Board providing for the issue of any series of Preference Shares.

 

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3.5                                At the discretion of the Board, whether or not in connection with the issuance and sale of any shares or other securities of the Company, the Company may issue securities, contracts, warrants or other instruments evidencing any shares, option rights, securities having conversion or option rights, or obligations on such terms, conditions and other provisions as are fixed by the Board, including conditions that preclude or limit any person or persons owning or offering to acquire a specified number or percentage of the issued Common Shares, other shares, option rights, securities having conversion or option rights, or obligations of the Company or transferee of the person or persons from exercising, converting, transferring or receiving the shares, option rights, securities having conversion or option rights, or obligations.

 

3.6                                All the rights attaching to a Treasury Share shall be suspended and shall not be exercised by the Company while it holds such Treasury Share and, except where required by the Act, all Treasury Shares shall be excluded from the calculation of any percentage or fraction of the share capital, or shares, of the Company.

 

4.                                       Power of the Company to Purchase its Shares

 

4.1                                The Company may purchase its own shares for cancellation or acquire them as Treasury Shares in accordance with the Act on such terms as the Board shall think fit.

 

4.2                                The Board may exercise all the powers of the Company to purchase or acquire all or any part of its own shares in accordance with the Act.

 

5.                                       Fractional Shares

 

The Company may issue its shares in fractional denominations and deal with such fractions to the same extent as its whole shares and shares in fractional denominations shall have in proportion to the respective fractions represented thereby all of the rights of whole shares including the right to vote, to receive dividends and distributions and to participate in a winding-up.

 

6.                                       Calls on Unpaid Shares and Forfeiture of Shares

 

6.1                                The Board may make such calls as it thinks fit upon the Members in respect of any moneys unpaid on the shares allotted to or held by such Members, whether in respect of the par value of such shares or the premium on such shares (such shares being referred to in these Bye-laws as “unpaid shares”), and not made payable at fixed times by the terms and conditions of issue and, if a call is not paid on or before the day appointed for payment thereof, the Member 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 Board may differentiate between the holders as to the amount of calls to be paid and the times of payment of such calls.

 

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6.2                                Any amount which by the terms of allotment of an unpaid share becomes payable upon issue or at any fixed date by the terms of issue shall for all the purposes of these Bye-laws be deemed to be an amount on which a call has been 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 the relevant provisions of these Bye-laws as to payment of interest, costs and expenses, forfeiture or otherwise shall apply as if such amount had become payable by virtue of a duly made and notified call.

 

6.3                                The joint holders of a share shall be jointly and severally liable to pay all calls and any interest, costs and expenses in respect thereof.

 

6.4                                The Company may accept from any Member 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 or become payable.

 

6.5                                If any Member fails to pay, on the day appointed for payment thereof, any call in respect of any share allotted to or held by such Member, the Board may, at any time thereafter during such time as the call remains unpaid, direct the Secretary to forward such Member a notice in writing in the form, or as near thereto as circumstances admit, of the following:

 

Notice of Liability to Forfeiture for Non-Payment of Call
Kosmos Energy Ltd. (the “Company”)

 

You have failed to pay the call of [amount of call] made on the [ ] day of [ ], 20[ ], in respect of the [number] share(s)  [number in figures] standing in your name in the Register of Members 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[ ] at the registered office of the Company the share(s) will be liable to be forfeited.

 

Dated this [ ] day of [ ], 20[ ]

 

[Signature of Secretary] By Order of the Board

 

6.6                                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.

 

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6.7                                A Member whose share or shares have been so forfeited 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, together with all interest due thereon and any costs and expenses incurred by the Company in connection therewith.

 

6.8                                The Board may accept the surrender of any shares which 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 had been forfeited.

 

ALTERATION OF SHARE CAPITAL

 

7.                                       Power to Alter Capital

 

7.1                                Without limiting the scope of Bye-law 11, the Company may, with the approval of the Board and, after the approval of the Board, the approval of Members by a resolution of the Members passed in accordance with Bye-law 21 or 27, as applicable, increase, divide, consolidate, subdivide, change the currency denomination of, diminish or otherwise alter or reduce its authorized share capital in any manner permitted by the Act.

 

7.2                                Where, on any alteration or reduction of share capital, fractions of shares or some other difficulty would arise, the Board may deal with or resolve the same in such manner as it thinks fit.

 

8.                                       Variation of Rights Attaching to Shares

 

If, at any time, the share capital is divided into different classes of shares, the rights attached to any class (unless otherwise provided by the terms of issue of the shares of that class) may, whether or not the Company is being wound-up, be varied with the approval of the Board and, after the approval of the Board, the consent in writing of the holders of a majority of the issued and outstanding shares of that class or with the sanction of a resolution passed by a majority of the issued and outstanding shares of the class at a separate general meeting of the holders of the shares of the class.  The rights conferred upon the holders of the shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by the creation or issue of further shares ranking pari passu therewith.

 

DIVIDENDS AND CAPITALISATION

 

9.                                       Dividends

 

9.1                                The Board may, subject to these Bye-laws and in accordance with the Act, declare a dividend to be paid to the Members in proportion to the number of shares held by them, and such dividend may be paid in cash or wholly or partly in specie in which case the Board may fix the value for distribution in specie of any assets. No unpaid dividend shall bear interest as against the Company.

 

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9.2                                The Board may declare and make such other distributions (in cash or in specie) to the Members as may be lawfully made out of the assets of the Company.  No unpaid distribution shall bear interest as against the Company.

 

9.3                                Except as otherwise provided in these Bye-laws, in order that the Company may determine the Members entitled to receive payment of any dividend or other distribution or allotment of any rights or the Members entitled to exercise any rights in respect of any change, conversion or exchange of shares, or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action.  If no record date is fixed, the record date for determining Members for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

 

9.4                                Notwithstanding Bye-law 9.1 and 9.2, if there are any unpaid shares issued and outstanding, the Company may pay dividends and other distributions (in cash or in specie) in proportion to the amounts paid up on each share.

 

9.5                                The Board may, before declaring a dividend, set aside out of the surplus or profits of the Company, such amount as it thinks proper as a reserve to be used to meet contingencies or for equalising dividends or for any other purpose.

 

10.                                Method of Payment

 

10.1                         The Board may deduct from the dividends or distributions payable to any Member all moneys due from such Member to the Company on account of calls on unpaid shares or otherwise.

 

10.2                         Any dividend and or other moneys payable in respect of a share which has remained unclaimed for 6 years from the date when it became due for payment shall, if the Board so resolves, be forfeited and cease to remain owing by the Company.  The payment of any unclaimed dividend or other moneys payable in respect of a share may be paid by the Company into an account separate from the Company’s own account.  Such payment shall not constitute the Company a trustee in respect thereof.

 

10.3                         The Company shall be entitled to cease sending dividend cheques and warrants by post or otherwise to a Member if those instruments have been returned undelivered to, or left uncashed by, that Member on at least two consecutive occasions, or, following one such occasion, reasonable enquiries have failed to establish the Member’s new address.  The entitlement conferred on the Company by this Bye-law 10.3 in respect of any Member shall cease if the Member claims a dividend or cashes a dividend cheque or warrant.

 

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11.                                Capitalisation

 

11.1                         The Board may capitalise any amount for the time being standing to the credit of any of the Company’s share premium or other reserve accounts or to the credit of the profit and loss account or otherwise available for distribution by applying such amount in paying up unissued shares to be allotted as fully paid up bonus shares pro-rata (except in connection with the conversion of shares of one class to shares of another class) to the Members.

 

11.2                         The Board may capitalise any amount at the time standing to the credit of a reserve account or amounts otherwise available for dividend or distribution by applying such amounts in paying up, in whole or in part, any unpaid shares of those Members who would have been entitled to such amounts if they were distributed by way of dividend or distribution.

 

MEETINGS OF MEMBERS

 

12.                                Annual General Meetings

 

The annual general meeting of the Company shall be held in each year (other than the year of incorporation) at such time and place as the Board shall appoint.

 

13.                                Special General Meetings

 

13.1                         A special general meeting may be convened by the Chairman or the Board whenever in their judgment such a meeting is necessary.

 

13.2                         The Board shall, on the requisition of Members holding at the date of the deposit of the requisition not less than one-tenth of such of the paid-up share capital of the Company as at the date of the deposit carries the right to vote at general meetings, forthwith proceed to convene a special general meeting and the provisions of the Act shall apply.  Such requisition must state the purposes of the meeting, and must be signed by the requisitionists and deposited at the registered office of the Company, and may consist of several documents in like form each signed by one or more requisitionists.

 

13.3                         A special general meeting shall be held at such date, time and place as may be fixed by the Board in accordance with these Bye-laws.  Business conducted at a special general meeting shall be limited to the purposes stated in the notice.

 

14.                               Notice

 

14.1                         A written notice of a general meeting shall be given which shall state the place, date and hour of the general meeting, the means of remote communications, if any, by which Members and proxy holders may be deemed to be present in person and vote at such general meeting, the record date for determining Members entitled to vote at such

 

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general meeting, if such record date is different from the record date for determining Members entitled to notice of the general meeting, and, in the case of a special general meeting, the purpose or purposes for which the general meeting is called.  Unless otherwise provided in these Bye-laws, such notice shall be given not less than 10 nor more than 60 days before the date of the general meeting to each Member of record entitled to notice of such general meeting.

 

14.2                         In order that the Company may determine the Members entitled to notice of and to vote at any general meeting or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than 60 nor less than 10 days before the date of such general meeting.  If the Board so fixes a record date for notice of any general meeting of Members, such date shall also be the record date for determining the Members entitled to vote at such general meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the general meeting shall be the date for making such determination.  If no record date is fixed by the Board, the record date for determining Members entitled to notice of and to vote at a general meeting shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the general meeting is held.  A determination of Members of record entitled to notice of or to vote at a general meeting shall apply to any adjournment of the general meeting; provided that the Board may fix a new record date for determination of Members entitled to vote at the adjourned general meeting and in such case shall also fix as the record date for determining Members entitled to notice of such general meeting the same or an earlier date as that fixed for determination of Members entitled to vote at such adjourned general meeting in accordance with these Bye-laws.

 

14.3                         A general meeting shall, notwithstanding that it is called on shorter notice than that specified in these Bye-laws, be deemed to have been properly called if it is so agreed by (i) all the Members entitled to attend and vote thereat in the case of an annual general meeting; or (ii) by a majority in number of the Members having the right to attend and vote at the general 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.

 

14.4                         The accidental omission to give notice of a general meeting to, or the non-receipt of a notice of a general meeting by, any person entitled to receive notice shall not invalidate the proceedings at that general meeting.

 

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15.                                Giving Notice

 

15.1                         A notice may be given by the Company to a Member:

 

(a)                                   by delivering it to such Member in person; or

 

(b)                                  by sending it by letter mail or courier to such Member’s address in the Register of Members; or

 

(c)                                   by transmitting it by electronic means (including facsimile and electronic mail, but not telephone) in accordance with such directions as may be given by such Member to the Company for such purpose; or

 

(d)                                  by delivering it in accordance with the provisions of the Act pertaining to delivery of electronic records by publication on a website.

 

15.2                         Any notice delivered in accordance with Bye-law 15.1(a), (b) or (c) shall be deemed to have been served at the time when the same would be delivered in the ordinary course of transmission and, in proving such service, it shall be sufficient to prove that the notice was properly addressed and prepaid, if posted, and the time when it was posted, delivered to the courier or transmitted by electronic means.  Any notice delivered in accordance with Bye-law 15.1(d) shall be deemed to have been delivered at the time when the requirements of the Act in that regard have been met.

 

16.                                Notice of Nominations and Member Business

 

16.1                         Annual General Meetings

 

(a)                                   Nominations of persons for election to the Board or the proposal of other business to be transacted by the Members may be made at an annual general meeting only (A) pursuant to the Company’s notice of meeting (or any supplement thereto), (B) by or at the direction of the Board or (C) subject to any applicable law, by Members of record at the time of giving of notice as provided for in this Bye-law 16.1 and who comply with the notice procedures set forth in this Bye-law 16.1.

 

(b)                                  For nominations or other business to be properly brought before an annual general meeting by a Member pursuant to clause (C) of Bye-law 16.1(a), the Member must have given timely notice thereof in writing to the Secretary and any such proposed business must constitute a proper matter for Member action.  To be timely, a Member’s notice shall be delivered to or mailed and received by the Secretary at the registered office of the Company not less than 90 days nor more than 120 days prior to the first anniversary of the preceding year’s annual general meeting; provided , that in the event that the date of the annual general meeting is advanced more than 30 days prior to such anniversary date or

 

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delayed more than 30 days after such anniversary date then to be timely such notice must be received at the registered office of the Company no earlier than 120 days prior to such annual general meeting and no later than the later of 70 days prior to the date of the general meeting or the 10th day following the day on which public announcement of the date of the general meeting was first made by the Company.  In no event shall the public announcement of an adjournment or postponement of an annual general meeting commence a new time period (or extend any time period) for the giving of a Member’s notice as described above.  For purposes of Bye-laws 16.1(b) and 16.2, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, the Associated Press or any comparable news service in the United States or in a document publicly filed by the Company with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934.

 

(c)                                   A Member’s notice to the Secretary shall set forth (A) as to each person whom the Member proposes to nominate for election or reelection as a director all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934 (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected), (B) as to any other business that the Member proposes to bring before the general meeting, a brief description of the business desired to be brought before the general meeting, the text of the proposal or business, the reasons for conducting such business at the general meeting and any material interest in such business of such Member and the beneficial owner, if any, on whose behalf the proposal is made, and (C) as to the Member giving the notice and the beneficial owner, if any, on whose behalf the proposal is made:

 

(i)                                      the name and address of such Member (as they appear in the Register of Members) and any such beneficial owner;

 

(ii)                                   the class or series and number of shares of the Company which are held of record or are beneficially owned by such Member and by any such beneficial owner;

 

(iii)                                a description of any agreement, arrangement or understanding between or among such Member and any such beneficial owner, any of their respective affiliates or associates, and any other person or persons (including their names) in connection with the proposal of such nomination or other business;

 

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(iv)                               a description of any agreement, arrangement or understanding (including, regardless of the form of settlement, any derivative, long or short positions, profit interests, forwards, futures, swaps, options, warrants, convertible securities, share appreciation or similar rights, hedging transactions and borrowed or loaned shares) that has been entered into by or on behalf of, or any other agreement, arrangement or understanding that has been made, the effect or intent of which is to create or mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such Member or any such beneficial owner or any such nominee with respect to the Company’s securities (a “Derivative Instrument”);

 

(v)                                  to the extent not disclosed pursuant to clause (iv) above, the principal amount of any indebtedness of the Company or any of its subsidiaries beneficially owned by such Member or by any such beneficial owner, together with the title of the instrument under which such indebtedness was issued and a description of any Derivative Instrument entered into by or on behalf of such Member or such beneficial owner relating to the value or payment of any indebtedness of the Company or any such subsidiary;

 

(vi)                               a representation that the Member is a holder of record of shares of the Company entitled to vote at such general meeting and intends to appear in person or by proxy at the general meeting to bring such nomination or other business before the general meeting; and

 

(vii)                            a representation as to whether such Member or any such beneficial owner intends or is part of a group that intends to (i) deliver a proxy statement and/or form of proxy to holders of at least the percentage of the voting power of the Company’s outstanding shares required to approve or adopt the proposal or to elect each such nominee and/or (ii) otherwise to solicit proxies from Members in support of such proposal or nomination.

 

(d)                                  If requested by the Company, the information required under clauses (ii), (iii), (iv) and (v) of Bye-law 16.1(c) shall be supplemented by such Member and any such beneficial owner not later than 10 days after the record date for notice of the general meeting to disclose such information as of such record date.

 

(e)                                   Notwithstanding anything to the contrary, the notice requirements set forth herein with respect to the proposal of any business pursuant to this Bye-law 16.1 other than a nomination shall be deemed satisfied by a Member if such Member has submitted a proposal to the Company in compliance with Rule 14a-8 promulgated under the Securities and Exchange Act of 1934 and such Member’s

 

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proposal has been included in a proxy statement that has been prepared by the Company to solicit proxies for the general meeting.

 

16.2                         Special General Meetings

 

(a)                                   Only such business shall be conducted at a special general meeting as shall have been brought before the general meeting in accordance with the Company’s notice of meeting pursuant to Bye-laws 14 and 15.

 

(b)                                  Nominations of persons for election to the Board at a special general meeting may be made (i) by or at the direction of the Board or (ii) provided that the Board has determined that Members may nominate persons for election to the Board at such general meeting, by any Member of the Company who is a Member of record at the time of giving of notice provided for in this Bye-law 16.2(b), who shall be entitled to vote at the general meeting and who complies with the notice procedures set forth in this Bye-law 16.

 

(c)                                   For nominations to be properly brought before a special general meeting by a Member pursuant to this Bye-law 16.2(b)(ii), the Member must have given timely notice thereof in writing to the Secretary.  To be timely, a Member’s notice shall be delivered to or mailed and received at the registered office of the Company (A) not earlier than 120 days prior to the date of the special general meeting nor (B) later than the later of 90 days prior to the date of the special general meeting or the 10th day following the day on which public announcement of the date of the special general meeting was first made.

 

(d)                                  A Member’s notice to the Secretary, including any notice of requisition pursuant to Bye-law 13.2, shall comply with the notice requirements of Bye-law 16.1(c) and (d).

 

16.3                         General

 

(a)                                   At the request of the Board, any person nominated by the Board for election as a director shall furnish to the Secretary the information that is required to be set forth in a Member’s notice of nomination pursuant to Bye-law 16.1(c).

 

(b)                                  Subject to the provisions of Annex A, no person shall be eligible to be nominated by a Member to serve as a director of the Company unless nominated in accordance with the procedures set forth in this Bye-law 16.

 

(c)                                   The chairman of the general meeting shall, if the facts warrant, determine and declare to the general meeting that a nomination was not made in accordance with the procedures prescribed by these Bye-laws or that business was not properly brought before the general meeting, and if he should so determine and

 

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declare, the defective nomination shall be disregarded or such business shall not be transacted, as the case may be.

 

(d)                                  Notwithstanding the foregoing provisions of this Bye-law 16, unless otherwise required by the Act, if the Member (or a qualified representative of the Member) does not appear at the annual or special general meeting to present a nomination or other proposed business, such nomination shall be disregarded or such proposed business shall not be transacted, as the case may be, notwithstanding that proxies in respect of such vote may have been received by the Company.  For purposes of this Bye-law 16.3, to be considered a qualified representative of the Member, a person must be a duly authorized officer, manager or partner of such Member or must be authorized by a writing executed by such Member or an electronic transmission delivered by such Member to act for such Member as proxy at the general meeting and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the general meeting.

 

16.4                         Without limiting the foregoing provisions of this Bye-law 16, a Member shall also comply with all applicable requirements of the Securities Exchange Act of 1934 and the rules and regulations thereunder with respect to the matters set forth in this Bye-law 16; provided , that any references in these Bye-laws to the Securities Exchange Act of 1934 or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Bye-law, and compliance with Bye-law 16.1 or 16.2 shall be the exclusive means for a Member to make nominations or submit other business (other than as provided in Bye-law 16.1(e)).

 

17.                                Postponement or Cancellation of General Meeting

 

The Chairman may, and the Secretary on instruction from the Chairman shall, postpone or cancel any general meeting called in accordance with these Bye-laws (other than a general meeting requisitioned under Bye-law 13.2) provided that notice of postponement or cancellation is given to each Member before the time for such general meeting.  Fresh notice of the date, time and place for the postponed or cancelled general meeting shall be given to the Members in accordance with these Bye-laws.

 

18.                                Electronic Participation and Security at General Meetings

 

18.1                         Members may participate in any general meeting by such telephonic, electronic or other communications facilities or means determined by the chairman of such general meeting as may permit all persons participating in the general meeting to communicate with each other simultaneously and instantaneously in accordance with applicable law, and participation in such a general meeting shall constitute presence in person at such general meeting.

 

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18.2                         The Board may, and at any general meeting the chairman of such general meeting may make any arrangement and impose any requirement or restriction it or he considers appropriate to ensure the security of a general meeting, including requirements for evidence of identity to be produced by those attending the general meeting, the searching of their personal property and the restriction of items that may be taken into the meeting place.  The Board and, at any general meeting, the chairman of such general meeting are entitled to refuse entry to a person who refuses to comply with any such arrangements, requirements or restrictions.

 

19.                                Quorum at General Meetings

 

19.1                         At any general meeting the presence at the start of the general meeting of two or more persons representing in person or by proxy a majority of the issued and outstanding shares in the Company entitled to vote at such general meeting shall constitute a quorum for the transaction of business.

 

19.2                         If within half an hour (or such longer time as the chairman of the general meeting may determine to wait) from the time appointed for the general meeting, a quorum is not present, then, in the case of a general meeting convened on a requisition under Bye-law 13.2, the general meeting shall be deemed cancelled, and, in any other case, the general meeting shall be postponed to such time and place as the chairman may determine , without notice other than announcement at the general meeting, until a quorum shall be present.  At such postponed general meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the general meeting as originally notified.

 

20.                                Organization

 

20.1                         At each general meeting, the Chairman, if one shall have been elected, or in the Chairman’s absence or if one shall not have been elected, such director or officer designated by the vote of the majority of the directors present at such general meeting, shall act as chairman of the general meeting.  The Secretary (or in the Secretary’s absence or inability to act, the person whom the chairman of the general meeting shall appoint as a secretary of the general meeting) shall act as secretary of the general meeting and keep the minutes thereof.

 

20.2                         The order of business at all general meetings shall be as determined by the chairman of the general meeting.

 

21.                               Voting on Resolutions

 

21.1                         Unless otherwise provided in these Bye-laws and subject to the Act, all matters presented at a general meeting other than the election of directors shall be decided by

 

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the affirmative vote of the majority of the votes cast at a general meeting at which a quorum is present.

 

21.2                         In determining the number of votes cast for or against a resolution (or election of a director), any shares abstaining from voting will not be treated as a vote cast.  Each Member entitled to vote may cast a vote at a general meeting unless such Member has not paid all the calls on all shares held by such Member.

 

21.3                         In the event that a Member participates in a general meeting by telephone, electronic or other communications facilities or means, the chairman of the general meeting shall direct the manner in which such Member may cast his vote.

 

21.4                         At any general meeting if an amendment is proposed to any resolution under consideration and the chairman of the general meeting rules on whether or not the proposed amendment is out of order, the proceedings on the substantive resolution shall not be invalidated by any error in such ruling.

 

21.5                         At any general meeting, a resolution put to the vote of the general meeting shall be voted upon either by a show of hands or by a count of votes, as determined by the chairman of the general meeting. Subject to these Bye-laws and any rights or restrictions for the time being lawfully attached to any class of shares, if any resolution is being voted upon by a show of hands, every Member present in person and every person holding a valid proxy at such general meeting shall be entitled to one vote and shall cast such vote by raising his or her hand.

 

21.6                         At any general meeting, a declaration by the chairman of the general meeting that a question proposed for consideration has, on a show of hands or a count of votes, been carried, or carried unanimously, or by a particular majority, or lost, and an entry to that effect in a book containing the minutes of the proceedings of the Company shall, subject to these Bye-laws, be conclusive evidence of that fact.

 

22.                                Power to Demand a Vote on a Poll

 

22.1                         Notwithstanding the foregoing, a poll may be demanded with respect to any resolution put to the vote of a general meeting by any of the following persons:

 

(a)                                   the chairman of such general meeting; or

 

(b)                                  at least three Members present in person or represented by proxy; or

 

(c)                                   any Member or Members present in person or represented by proxy holding not less than one-tenth of the total voting rights of all the Members having the right to vote at such general meeting; or

 

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(d)                                  any Member or Members present in person or represented by proxy holding shares in the Company 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 of the total amount paid up on all such shares conferring such right.

 

22.2                         Where a poll is demanded, subject to any rights or restrictions attached to any class of shares, every person present at such general meeting shall have one vote for each share of which such person is the holder or for which such person holds a proxy.  Such vote shall be counted by ballot as described herein, or in the case of a general meeting at which one or more Members are present by telephone, electronic or other communications facilities or means, in such manner as the chairman of the general meeting may direct, and the result of such poll shall be deemed to be the resolution of the general meeting at which the poll was demanded and shall replace any previous resolution upon the same matter which has been the subject of a show of hands.  A person entitled to more than one vote need not use all his votes or cast all the votes he uses in the same way.

 

22.3                         A poll demanded for the purpose of electing a chairman of the general meeting or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time and in such manner during such general meeting as the chairman (or acting chairman) of the general meeting may direct.  Any business other than that upon which a poll has been demanded may be conducted pending the taking of the poll.

 

22.4                         Where a vote is taken by poll, each person physically present and entitled to vote shall be furnished with a ballot paper (or such other means as the chairman of the general meeting may determine) on which such person shall record his vote in such manner as shall be determined at the general meeting having regard to the nature of the question on which the vote is taken.  Each ballot paper shall be signed or initialled or otherwise marked so as to identify the voter and the registered holder in the case of a proxy.  Each person present by telephone, electronic or other communications facilities or means shall cast his vote in such manner as the chairman of the general meeting shall direct.  At the conclusion of the poll, the ballot papers and votes cast in accordance with such directions shall be examined and counted by a committee appointed by the chairman of the general meeting for the purpose.  The result of the poll shall be declared by the chairman of the general meeting.

 

23.                                Voting by Joint Holders of Shares

 

In the case of joint holders of shares, the vote of the most senior joint holder of such shares who tenders a vote (whether in person or by proxy) shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members.

 

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24.                                Instrument of Proxy

 

24.1                         Each Member entitled to vote at a general meeting may authorize another person or persons to act for such Member by proxy, but no such proxy shall be voted or acted upon after 3 years from its date, unless the proxy provides for a longer period.

 

24.2                         Without limiting the manner in which a Member may authorize another person or persons to act for such Member as proxy, the following shall constitute a valid means by which a Member may grant such authority:

 

(a)                                   a Member may appoint a person or persons to act for such Member as proxy pursuant to an instrument in writing.  Execution may be accomplished by the Member or such Member’s authorized officer, director, employee or agent signing such writing or causing such person’s signature to be affixed to such writing by any reasonable means including by facsimile signature.

 

(b)                                  a Member may authorize another person or persons to act for such Member as proxy by transmitting or authorizing the transmission of a telegram, cablegram or other means of electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such telegram, cablegram or other means of electronic transmission must either set forth or be submitted with information from which it can be determined that the telegram, cablegram or other electronic transmission was authorized the Member.

 

Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission created pursuant to this Bye-law 24.2 may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.

 

24.3                         The appointment of a proxy pursuant to this Bye-law 24 must be received by the Company at the registered office or at such other place or in such manner and by such time as is specified in the notice convening the general meeting, or as otherwise specified by the Company in connection with such general meeting at which, or with respect to which the person named in the appointment proposes to vote, and an appointment of proxy which is not so received shall be invalid.

 

24.4                         A vote given in accordance with the terms of an instrument of proxy or authorization shall be valid notwithstanding the previous death or unsoundness of mind of the principal, or revocation of the instrument of proxy or of the corporate authority, provided that no intimation in writing of such death, unsoundness of mind or

 

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revocation shall have been received by the Company at the registered office (or such other place as may be specified for the delivery of instruments of proxy or authorization in the notice convening the general meeting or other documents sent therewith) at least one hour before the commencement of the general meeting or adjourned general meeting, or the taking of the poll, at which the instrument of proxy or authorization is used.

 

24.5                         A Member may appoint a standing proxy by serving on the Company at the registered office, or at such place or places as the Board may otherwise specify for the purpose, a proxy. Any standing proxy or authorisation shall be valid for all general meetings and adjournments thereof, until notice of revocation is received at the registered office or at such place or places as the Board may otherwise specify for the purpose; provided , that no proxy shall be valid for more than 3 years unless such proxy expressly provides for a longer period.  Where a standing proxy exists, its operation shall be deemed to have been suspended at any general meeting or adjournment thereof at which the Member is present or in respect to which the Member has specially appointed a proxy or representative.  The Board may from time to time require such evidence as it shall deem necessary as to the due execution and continuing validity of any standing proxy or authorisation and the operation of any such standing proxy or authorisation shall be deemed to be suspended until such time as the Board determines that it has received the requested evidence or other evidence satisfactory to it.

 

24.6                         The decision of the chairman of any general meeting as to the validity of any appointment of a proxy pursuant to this Bye-law 24 shall be final.

 

25.                                Representation of Corporate Member

 

25.1                         A corporation which is a Member may, by written instrument, authorise such person or persons as it thinks fit to act as its representative at any meeting and any person so authorise d shall be entitled to exercise the same powers on behalf of the corporation which such person represents as that corporation could exercise if it were an individual Member, and that Member shall be deemed to be present in person at any such meeting attended by its authorised representative or representatives.

 

25.2                         Notwithstanding the foregoing, the chairman of the meeting may accept such assurances as he thinks fit as to the right of any person to attend and vote at general meetings on behalf of a corporation which is a Member.

 

26.                                Adjournment of General Meeting

 

26.1                         The chairman of any general meeting at which a quorum is present may with the consent of Members holding a majority of the voting rights of those Members present in person or by proxy (and shall if so directed by Members holding a majority of the voting rights of those Members present in person or by proxy), adjourn the general meeting.

 

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26.2                         In addition, the chairman may adjourn the general 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 general meeting because of the number of Members wishing to attend who are not present; or

 

(b)                                  the unruly conduct of persons attending the general meeting prevents, or is likely to prevent, the orderly continuation of the business of the general meeting; or

 

(c)                                   an adjournment is otherwise necessary so that the business of the general meeting may be properly conducted.

 

26.3                         Unless these Bye-laws otherwise require, when a general meeting is adjourned to another time or place, notice need not be given of the adjourned general meeting if the date, time, place and the means of remote communications, if any, by which Members and proxy holders may be deemed to be present in person and vote at such general meeting are announced at the general meeting at which the adjournment is taken.  At the adjourned general meeting, the Company may transact any business which might have been transacted at the original general meeting.  If the date, time, place and means of remote communications, if any, are not announced at the general meeting at which the adjournment is taken, the adjournment is for more than 30 days, or after the adjournment a new record date is fixed for the adjourned general meeting, a notice of the adjourned general meeting shall be given to each Member of record entitled to notice of such adjourned general meeting.

 

27.                                Action by Written Resolutions Without a General Meeting

 

27.1                         Subject to these Bye-laws anything which may be done by resolution of the Company in general meeting or by resolution of a meeting of any class of the Members may, without a meeting be done by written resolution in accordance with this Bye-law.

 

27.2                         Notice of a written resolution shall be given, and a copy of the resolution shall be circulated to all Members who would be entitled to attend a meeting and vote thereon.  The accidental omission to give notice to, or the non-receipt of a notice by, any Member does not invalidate the passing of a resolution.

 

27.3                         A written resolution is passed when it is signed by, or in the case of a Member that is a corporation on behalf of, the Members who at the date that the notice is given represent such majority of votes as would be required if the resolution was voted on at a meeting of Members at which all Members entitled to attend and vote thereat were present and voting.

 

27.4                         A resolution in writing may be signed by any number of counterparts.

 

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