BYE-LAWS
OF
TYCO INTERNATIONAL LTD.
(INCORPORATING ALL AMENDMENTS TO 27th MARCH, 2001)
INDEX
1. Interpretation......................................................1
SHARE CAPITAL AND VARIATION OF RIGHTS.....................................3
2. Share capital.......................................................3
3. Alteration of rights................................................3
4. Effect of issuing shares ranking PARI PASSU.........................3
4A. Issue and purchase of own shares....................................3
4B. Redeemable preference shares........................................4
5. Trusts not recognised...............................................4
5A. Renunciation on allotment...........................................4
6. Receipts in the case of joint holders...............................4
7. Certificates........................................................4
8. New certificates....................................................5
9. Delivery of certificates............................................5
LIEN ....................................................................5
10. Company's lien......................................................5
10A. Taxation............................................................5
11. Power of sale.......................................................7
12. Transfer on sale under lien.........................................7
13. Application of proceeds of sale.....................................7
CALLS ON SHARES...........................................................7
14. Calls...............................................................7
15. When calls deemed to be made........................................7
16. Interest on calls...................................................8
17. Sums payable on allotment deemed to be calls........................8
18. Differentiation between Members.....................................8
19. Payment in advance..................................................8
20. Liability of joint holders..........................................8
REGISTRATION OF MEMBERS...................................................8
21. Registration of Members.............................................8
22. Execution of transfer...............................................9
TRANSFER AND TRANSMISSION OF SHARES.......................................9
23. Form of transfer....................................................9
24. In what cases Directors may decline to register transfers...........9
25. Transfer to be left at office and evidence to be given..............9
26. Joint holders.......................................................9
27. Notice of refusual..................................................9
28. Recognition of legal personal representatives......................10
29. Rights on death....................................................10
29A. Destruction of records.............................................10
29B. Untraced shareholders..............................................11
FORFEITURE OF SHARES.....................................................12
30. If call or instalment not paid notice may be given.................12
31. Form of notice.....................................................12
32. If notice not complied with, shares may be forfeited...............12
33. Notice of forfeiture...............................................12
34. Forfeited share to become property of Company......................12
35. Power to annul forfeiture..........................................13
36. Arrears to be paid notwithstanding forfeiture......................13
ALTERATION OF CAPITAL....................................................13
37. Consolidation and sub-division of capital..........................13
37A. Procedure on consolidation.........................................13
38. Increase of capital................................................14
39. Reduction of capital...............................................14
MEETINGS OF THE COMPANY..................................................14
40. Annual General Meeting.............................................14
41. Special General Meeting............................................14
42. Meeting called on requisition......................................14
43. Quorum.............................................................16
44. Validity of meeting called on short notice.........................16
45. Power to adjourn General Meeting...................................16
VOTING AT MEETINGS.......................................................16
46. Voting rights......................................................16
47. Joint holders......................................................19
48. Instrument appointing proxy to be in writing.......................20
49. Delivery of proxy..................................................20
50. Method of determining questions....................................20
51. Voting on poll.....................................................21
DIRECTORS................................................................21
52. Number and appointment of Directors................................21
53. Qualification of Directors.........................................21
54. When office of Director to be vacated..............................21
55. General powers of Company vested in Directors......................22
56. Appointment of attorney............................................22
57. Power to fill casual vacancies.....................................22
58. Power to appoint Chief Executive Officer...........................22
59. Remuneration of Chief Execution Officer............................22
60. Powers of Chief Executive Officer..................................22
61. Power to appoint supervisor of financial affairs...................23
62. Duties of Directors................................................23
63. Power to delegate to committees....................................23
64. Directors' interests...............................................23
65. Remuneration of Directors..........................................26
66. Meetings of Directors..............................................27
67. Quorum.............................................................27
68. Proceedings of committee...........................................27
69. Validity of acts where appointment defective.......................27
70. Resolution without meeting.........................................28
71. Removal of Director................................................28
72. Alternate Directors................................................28
MINUTES..................................................................28
73. Minutes to be recorded.............................................28
OFFICERS OTHER THAN DIRECTORS............................................29
74. Officers...........................................................29
75. Who to be chairman of meeting......................................29
76. Duties of Secretary................................................30
DIVIDENDS................................................................30
77. Declaration........................................................30
78. Revenue reserves...................................................30
79. Declaration and payment according to amounts paid or credited as
paid on shares; apportionment......................................30
80. Cash dividends to be payable in pounds Sterling or U.S. dollars or
other currencies...................................................30
81. Deduction from dividends...........................................31
82. Payment otherwise than in cash.....................................31
83. Unclaimed dividends................................................32
CAPITALISATION OF PROFITS AND RESERVES...................................32
84. Power to capitalise................................................32
84A. Power to effect a capitalisation issue with a cash option..........32
84B. Power to grant scrip dividend options..............................33
85. Powers incidental thereto..........................................35
BORROWING POWERS.........................................................35
86. Powers to borrow and issue securities..............................35
87. Specific mortgages to trustees.....................................36
ACCOUNTS.................................................................36
88. Proper accounts to be kept.........................................36
89. Statement of income to be laid before Members......................36
90. Balance sheet......................................................36
AUDIT ...................................................................36
91. Auditors...........................................................36
92. Remuneration of Auditors...........................................37
93. Vacancies in office of Auditors....................................37
94. Duty to examine books, etc.........................................37
NOTICES..................................................................38
95. How notice to be served............................................38
96. Notices to joint holders...........................................38
97. When deemed delivered..............................................38
98. Members resident abroad............................................38
98A. Notices served on non-Members......................................38
WINDING-UP...............................................................38
99. Distribution IN SPECIE.............................................38
SEAL ...................................................................39
100. Custody of Seal....................................................39
100A. Overseas Seal......................................................39
100B. Securities Seal....................................................40
ALTERATION OF BYE-LAWS...................................................40
101. Alteration of Bye-Laws.............................................40
INDEMNITY................................................................40
102. Indemnity..........................................................40
INDIVIDUAL RESPONSIBILITY OF DIRECTORS...................................40
103. Individual responsibility of Directors.............................40
TAKE-OVER OFFERS FOR THE COMPANY.........................................41
104. Take-over offers for the Company...................................41
1
BYE-LAWS
OF
TYCO INTERNATIONAL LTD.
(INCORPORATING ALL AMENDMENTS TO 27TH MARCH, 2001)
1. INTERPRETATION
In these Bye-Laws, unless there is something in the subject or context
inconsistent therewith:-
"The Companies Acts" means every Bermuda statute from time to time in
force concerning companies insofar as the same applies to the Company.
"The Company" means ADT Limited(1).
"The Directors" means the Directors for the time being of the Company.
"Dividend" includes bonus.
"Member" means a person or body corporate registered in the Register as
the holder of shares in the Company.
"Month" means calendar month.
"Notice" means written notice unless otherwise specifically stated.
"Paid up" includes credited as paid up.
"The Register" means the Register of Members and includes any branch or
sub-register.
"The Registrar" means any person appointed to perform the duties of
Registrar and if no such person shall be appointed means the Secretary.
"The Seal" means the Common Seal of the Company or any Overseas Seal or
any Securities Seal.
"Secretary" means the person appointed to perform the duties of the
Secretary of the Company and includes any Assistant or Acting Secretary.
----------
(1) The name of the Company was changed from ADT Limited to Tyco International
Ltd. on 2nd July, 1997.
2
"Signed" includes a signature or reproduction of a signature affixed by
mechanical means and cognate expressions shall be construed accordingly.
"Subsidiary" means any company or other legal entity which is for the time
being controlled by the Company. For the purposes of this definition,
control includes the right or power of the Company, whether directly or
through some other company or legal entity which is so controlled:-
(i) to receive more than one-half of all distributions, whether of
capital or revenue, at any time made by the Company or entity; or
(ii) to cast more than one-half of all the votes capable of being cast at
any general meeting of such company or entity (but excluding any
votes which are only exercisable upon the occurrence of any
contingency); or
(iii) to control the composition of the Board of Directors, Board of
Management or equivalent executive body (or, if there is more than
one such Board or body, any one of them) of, or otherwise to direct
the management or policies of, such company or entity.
"In writing" and "written" include printing, lithography, photography and
other modes of representing or reproducing words in visible form.
"May" shall be construed as permissive.
"Shall" shall be construed as imperative.
References in these Bye-Laws to shares or other securities being listed on
a stock exchange shall include their being quoted or publicly traded on a
stock exchange or other securities market, unless the context otherwise
requires.
References in these Bye-Laws to any statute or statutory provision shall
include any statute or statutory provision which amends, extends,
consolidates or replaces the same, or which has been amended, extended,
consolidated or replaced by the same, and shall include any orders,
regulations, instruments or other subordinate legislation made under the
relevant statute.
Words importing the singular number only include the plural number and
vice versa.
Words importing the masculine gender only include the feminine and neuter
genders respectively.
Words importing persons include companies or associations or bodies of
persons, whether corporate or un-incorporate.
3
SHARE CAPITAL AND VARIATION OF RIGHTS
2. SHARE CAPITAL
The authorised share capital of the Company shall be in the amount and
divided into the classes and having the rights set out in the Schedule to
these Bye-Laws (as amended from time to time), which shall be deemed to be
incorporated in and form part of this Bye-Law 2.
3. ALTERATION OF RIGHTS
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 consent in writing of the
holders of three-fourths of the issued shares of that class, or with the
sanction of a resolution passed at a separate General Meeting of the
holders of the shares of that class by a majority of three-fourths of such
holders voting in person or by proxy. To any such separate General
Meeting, all the provisions of these Bye-Laws as to Special General
Meetings shall MUTATIS MUTANDIS apply but so that:-
(a) the necessary quorum shall be three or more persons holding or
representing by proxy not less than one-third of the issued shares
of the class;
(b) every holder of shares of the class shall be entitled on a poll to
one vote for every share of such class held by him;
(c) any holder of shares of the class present in person or by proxy may
demand a poll; and
(d) at any adjourned meeting two holders of the shares of the class
present in person or by proxy (whatever the number of shares held by
them) shall be a quorum.
4. EFFECT OF ISSUING SHARES RANKING PARI PASSU WITH EXISTING SHARES
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.
4A. ISSUE AND PURCHASE OF OWN SHARES
(1) Subject to the rights conferred upon the holders of any class of shares,
the Directors may exercise the powers of the Company to purchase its own
shares and to allot, grant options over or otherwise dispose of shares
which the Directors have been authorised
4
to allot and issue by the Company in General Meeting upon such terms and
subject to such conditions as they think fit.
(2) The Directors of the Company may, subject to the provisions of the
Companies Acts, at any time exercise the power of the Company to purchase
its own shares conferred by paragraph (1) of this Bye-Law up to the
maximum nominal amount of share capital authorised by resolution of the
Company in General Meeting from time to time. The Directors are hereby
authorised pursuant to Section 42A of The Companies Act 1981 of Bermuda to
take all steps required to effect any such purchase.
4B. REDEEMABLE PREFERENCE SHARES
The terms and manner of redemption of any redeemable preference shares of
the Company shall be either (a) as the Company may in General Meeting
determine or (b) in the event that the Company in General Meeting may have
so authorised, as the Directors or any committee thereof may by resolution
determine before the allotment of such shares, such resolution to be
attached as an appendix to these Bye-Laws.
5. TRUSTS NOT RECOGNISED
Save as herein otherwise provided, the Company shall be entitled to treat
the registered holder of any share as the absolute owner thereof, and
accordingly shall not, except as by statute required, be bound to
recognise any equitable or other claim or interest in such share on the
part of any other person.
5A. RENUNCIATION ON ALLOTMENT
The Directors may at any time after the allotment of any share but before
any person has been entered in the Register of Members as the holder
recognise a renunciation thereof by the allottee in favour of some other
person and may accord to any allottee of a share a right to effect such
renunciation upon and subject to such terms and conditions as the
Directors may think fit to impose.
6. RECEIPTS IN THE CASE OF JOINT HOLDERS
If two or more persons are registered as joint holders of any shares, then
any one of such joint holders may give effectual receipts for dividends or
other monies payable in respect of the shares held by them as joint
holders.
7. CERTIFICATES
Subject to the Companies Acts and to the conditions of issue of any share
or class of shares, every Member shall be entitled to a certificate under
the Seal specifying the shares held by him and whether the same are fully
paid up and, if not, how much has been paid thereon provided that no
certificate shall be issued to any Member who is designated as a nominee
of an internationally recognised stock exchange unless such Member shall
specifically request the Company to issue the same or to any Member
5
whose shares are of a category designated by the Directors as being
uncertificated. No certificate shall be issued representing shares of more
than one class.
8. NEW CERTIFICATES
If any share certificate be worn out or defaced, then, upon production
thereof to the Registrar, and on such reasonable indemnity as the
Directors deem adequate being given, they shall order the same to be
cancelled and shall issue a new certificate in lieu thereof without
charge. If any such certificate be lost or destroyed, then upon proof
thereof to the satisfaction of the Directors, and on such reasonable
indemnity as the Directors deem adequate being given, a new certificate in
lieu thereof shall be issued without charge. Subject as provided in
Bye-Law 7, a Member who has transferred part of the shares comprised in
his registered holding shall be entitled to a certificate for the balance
without charge. Any two or more certificates representing shares of any
one class held by any Member may at his request be cancelled and a single
new certificate for such shares issued in lieu without charge. In the case
of shares held jointly by several persons any such request may be made by
any one of the joint holders.
9. DELIVERY OF CERTIFICATES
The certificate for shares registered in the names of two or more persons
shall, unless otherwise directed by them in writing delivered to the
Secretary, be delivered to the person first named on the Register.
LIEN
10. COMPANY'S LIEN
The Company shall have a lien on every share (not being a fully paid
share) for all monies (whether presently payable or not) called or payable
at a fixed time in respect of that share, and the Company shall also have
a lien on all shares (other than fully paid shares) standing registered in
the name of a single person, for all monies presently payable by him or
his estate to the Company; but the Directors may at any time declare any
share to be wholly or in part exempt from the provisions of this Bye-Law.
The Company's lien, if any, on a share shall extend to all dividends
payable thereon.
10A. TAXATION
Whenever any law for the time being of any country, state or place imposes
or purports to impose any immediate or future or possible liability upon
the Company to make any payment or empowers any government or taxing
authority or government official to require the Company to make any
payment in respect of any shares registered in any of the Company's
registers as held either jointly or solely by any Member or in respect of
any dividends, bonuses or other monies due or payable or accruing due or
which may become due or payable to such Member by the Company
6
on or in respect of any shares registered as aforesaid or for or on
account or in respect of any Member and whether in consequence of:-
(a) the death of such Member;
(b) the non-payment of any income tax or other tax by such Member;
(c) the non-payment of any estate, probate, succession, death, stamp, or
other duty by the executor or administrator of such Member or by or
out of his estate;
(d) any other act or thing;
in every such case (except to the extent that the rights conferred upon
holders of any class of shares render the Company liable to make
additional payments in respect of sums withheld on account of the
foregoing):-
(i) the Company shall be fully indemnified by such Member or his
executor or administrator from all liability;
(ii) the Company shall have a lien upon all dividends and other monies
payable in respect of the shares registered in any of the Company's
registers as held either jointly or solely by such Member for all
monies paid or payable by the Company in respect of such shares or
in respect of any dividends or other monies as aforesaid thereon or
for or on account or in respect of such Member under or in
consequence of any such law together with interest at the rate of
fifteen per cent. per annum thereon from date of payment to date of
repayment and may deduct or set off against such dividends or other
monies payable as aforesaid any monies paid or payable by the
Company as aforesaid together with interest as aforesaid;
(iii) the Company may recover as a debt due from such Member or his
executor or administrator wherever constituted any monies paid by
the Company under or in consequence of any such law and interest
thereon at the rate and for the period aforesaid in excess of any
dividends or other monies as aforesaid then due or payable by the
Company;
(iv) the Company may if any such money is paid or payable by it under any
such law as aforesaid refuse to register a transfer of any shares by
any such Member or his executor or administrator until such money
and interest as aforesaid is set off or deducted as aforesaid or in
case the same exceeds the amount of any such dividends or other
monies as aforesaid then due or payable by the Company until such
excess is paid to the Company.
Subject to the rights conferred upon the holders of any class of shares
nothing herein contained shall prejudice or affect any right or remedy
which any law may confer or purport to confer on the Company and as
between the Company and every such Member as aforesaid, his executor,
administrator and estate wheresoever constituted
7
or situate, any right or remedy which such law shall confer or purport to
confer on the Company shall be enforceable by the Company.
11. POWER OF SALE
The Company may sell, in such manner as the Directors may think fit, any
shares on which the Company has a lien, but no sale shall be made unless
some sum in respect of which the lien exists, is presently payable, nor
until the expiration of fourteen days after a notice stating and demanding
payment of such part of the amount in respect of which the lien exists as
is presently payable, has been given to the registered holder for the time
being of the shares, or the person entitled thereto by reason of his death
or bankruptcy.
12. TRANSFER ON SALE UNDER LIEN
To give effect to such sale the Directors may authorise some person to
transfer the shares sold to the purchaser thereof. The purchaser shall be
registered as the holder of the shares comprised in such transfer, and he
shall not be bound to see to the application of the purchase money, nor
shall his title to the shares be affected by any irregularity or
invalidity in the proceedings in reference to the sale.
13. APPLICATION OF PROCEEDS OF SALE
The net proceeds of the sale after payment of the costs of such sale shall
be received by the Company and applied in payment of such part of the
amount in respect of which the lien exists as is presently payable and the
residue, if any, shall (subject to a like lien for sums not presently
payable as existed upon the shares before sale) be paid to the persons
entitled to the shares at the date of the sale.
CALLS ON SHARES
14. CALLS
The Directors may from time to time make calls upon the Members in respect
of any monies unpaid on their shares and not by the conditions of the
allotment thereof made payable at fixed times. A call may be revoked or
postponed as the Directors may determine.
15. WHEN CALLS DEEMED TO BE MADE
A call shall be deemed to have been made at the time when the resolution
of the Directors authorising the call was passed and may be required to be
paid by instalments.
8
16. INTEREST ON CALLS
If a sum called in respect of a share is not paid before or on the day
appointed for payment thereof, the person from whom the sum is due shall
pay interest on the sum from the day appointed for payment thereof to the
time of actual payment at such rate not exceeding fifteen per cent. per
annum as the Directors may determine, but the Directors shall be at
liberty to waive payment of such interest wholly or in part.
17. SUMS PAYABLE ON ALLOTMENT DEEMED TO BE CALLS
Any sum which by the terms of issue of a share becomes payable on
allotment or at any fixed date shall for 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
the relevant provisions of these Bye-Laws as to payment of interest and
expenses, forfeiture or otherwise shall apply as if such sum had become
payable by virtue of a call duly made and notified.
18. DIFFERENTIATION BETWEEN MEMBERS
The Directors may, on the issue of shares, differentiate between the
holders as to the amount of calls to be paid and the times of payment.
19. PAYMENT IN ADVANCE
The Directors may, if they think fit, receive from any Member willing to
advance the same, all or any part of the monies uncalled and unpaid upon
any shares held by him, and upon all or any of the monies so advanced may
pay interest at such rate not exceeding fifteen per cent. per annum as may
be agreed between the Directors and the Member paying such sum in advance.
20. LIABILITY OF JOINT HOLDERS
The joint holders of any share shall be jointly and severally liable to
pay all calls in respect thereof.
REGISTRATION OF MEMBERS
21. REGISTRATION OF MEMBERS
The Directors shall cause to be entered in the Register the particulars
required by law and the Register shall be kept in such manner as to show
at all times the Members for the time being and the shares respectively
held by them. The Register shall be open for inspection at the office of
the Registrar between 10.00 a.m. and 12.00 noon on every working day.
9
TRANSFER AND TRANSMISSION OF SHARES
22. EXECUTION OF TRANSFER
Subject to the Companies Acts and these Bye-Laws, a share may be
transferred in any manner which the Directors may approve. The Directors
may require a transfer to be effected by an instrument signed by the
transferor and, in the case of a partly paid share, also by the
transferee. The transferor shall be deemed to remain the holder of such
share until the name of the transferee is entered in the Register in
respect thereof.
23. FORM OF TRANSFER
The instrument of transfer shall be in writing and in the usual common
form or in any other form which the Directors may approve. The instrument
of transfer may be on the back of the share certificate.
24. IN WHAT CASES DIRECTORS MAY DECLINE TO REGISTER TRANSFERS
(1) The Directors may decline to register any transfer of shares upon which
the Company has a lien, and in the case of shares not fully paid up, may
refuse to register a transfer to a transferee of whom they do not approve.
(2) The Directors may decline to register any transfer of shares by a
transferor or to a transferee on whom the Company has duly served a notice
under Bye-Law 46 or under Bye-Law 104 (not being a transfer in compliance
with such notice) during a period of suspension of voting and other rights
in respect of such shares under Bye-Law 46.
25. TRANSFER TO BE LEFT AT OFFICE AND EVIDENCE TO BE GIVEN
Unless otherwise determined by the Directors, either generally or in such
cases as they may specify, every instrument of transfer shall be left at
the office of the Registrar for registration, accompanied by the
certificate of the shares to be transferred, and such other evidence as
the Registrar may require to prove the title of the transferor, or his
right to transfer the shares.
26. JOINT HOLDERS
Without prejudice to the generality of the provisions of Bye-Law 24, the
Directors may refuse to register any transfer of shares (whether fully
paid or not) in favour of more than four persons jointly.
27. NOTICE OF REFUSAL
If the Directors refuse to register a transfer they shall within two
months after the date on which the transfer was lodged with the Company
send to the transferee a notice of refusal.
10
28. RECOGNITION OF LEGAL PERSONAL REPRESENTATIVES OF DECEASED MEMBER
In the case of the death of a Member the survivor or survivors where the
deceased was a joint holder, and the legal personal representatives of the
deceased where he was a sole holder, shall be the only persons recognised
by the Company as having any title to his interest in the shares; but
nothing in this Bye-Law contained shall release the estate of a deceased
joint holder from any liability in respect of any share which had been
jointly held by him with any other person.
29. RIGHTS ON DEATH
Any person becoming entitled to shares in consequence of the death of a
Member, upon producing such evidence as the Directors may deem sufficient,
may be registered as a Member in respect of such shares, or may, subject
to Bye-Law 24, transfer such shares to some other person by executing an
instrument of transfer in accordance with Bye-Law 23 above.
29A. DESTRUCTION OF RECORDS
The Company shall be entitled to destroy all instruments of transfer which
have been registered at any time after the expiration of six years from
the date of registration thereof and all dividend mandates and
notifications of change of address at any time after the expiration of two
years from the date of recording thereof and all share certificates which
have been cancelled at any time after the expiration of one year from the
date of the cancellation thereof and it shall conclusively be presumed in
favour of the Company that every entry in the Register purporting to have
been made on the basis of an instrument of transfer or other document so
destroyed was duly and properly made and every instrument of transfer so
destroyed was a valid and effective certificate duly and properly
cancelled and every other document hereinbefore mentioned so destroyed was
a valid and effective document in accordance with the recorded particulars
thereof in the books or records of the Company.
Provided always that:-
(a) the provisions aforesaid shall apply only to the destruction of a
document in good faith and without notice of any claim (regardless
of the parties thereto) to which the document might be relevant;
(b) nothing herein contained shall be construed as imposing upon the
Company any liability in respect of the destruction of any such
document earlier than as aforesaid or in any other circumstances
which would not attach to the Company in the absence of this
Bye-Law;
(c) references herein to the destruction of any document include
references to the disposal thereof in any manner.
11
29B. UNTRACED SHAREHOLDERS
The Company shall be entitled to sell at the best price reasonably
obtainable at the time of sale the shares of a Member or the shares to
which a person is entitled by virtue of the transmission on death or
bankruptcy if and provided that:
(i) during the period of six years prior to the date of the publication
of the advertisement referred to in paragraph (ii) below no dividend
(or cash option duly exercised in relation to a capitalisation
issue) in respect of those shares has been claimed and all share
certificates for shares issued under a capitalisation issue or under
a scrip dividend option for which an election has duly been made
have been returned to the Company unclaimed provided that at least
two payments of dividends and/or capitalisation issues and/or scrip
dividend issues have taken place in relation to the shares in
question during such six year period; and
(ii) the Company shall on expiry of the said period of six years have
inserted an advertisement in a newspaper circulating in the area of
the address at which service of notices upon such Member or other
person may be effected in accordance with these Bye-Laws, giving
notice of its intention to sell the said shares; and
(iii) during the said period of six years and the period of three months
following the publication of the said advertisement the Company
shall have received indication neither of the whereabouts nor of the
existence of such Member or person; and
(iv) notice shall have been given to any stock exchange upon which the
shares in question are listed for the time being of its intention to
make such sale.
To give effect to any such sale the Company may appoint any person to
execute as transferor an instrument of transfer of the said shares and
such instrument of transfer shall be as effective as if it had been
executed by the registered holder of or person entitled by transmission to
such shares and the title of the transferee shall not be affected by any
irregularity. The net proceeds of sale shall belong to the Company which
shall be obliged to account to the former Member or other person
previously entitled as aforesaid for an amount equal to such proceeds and
shall enter the name of such former Member or other person in the books of
the Company as a creditor for such amount. No trust shall be created in
respect of the debt, no interest shall be payable in respect of the same
and the Company shall not be required to account for any money earned on
the net proceeds, which may be employed in the business of the Company or
invested in such investments as the Directors may from time to time think
fit.
12
FORFEITURE OF SHARES
30. IF CALL OR INSTALMENT NOT PAID NOTICE MAY BE GIVEN
If any Member fails to pay any call or instalment on or before the day
appointed for payment of the same, the Directors may at any time
thereafter, during such time as the call or instalment remains unpaid,
serve a notice on such Member requiring him to pay the same, together with
any interest that may have accrued, and all expenses that may have been
incurred by the Company by reason of such non-payment.
31. FORM OF NOTICE
The notice shall name a day (not less than fourteen days from the date of
the notice), and a place on and at which such call or instalment and such
interest and expenses as aforesaid are to be paid. The notice shall also
state that in the event of non-payment at or before the time and at the
place appointed, the shares in respect of which the call was made or
instalment is payable will be liable to be forfeited.
32. IF NOTICE NOT COMPLIED WITH, SHARES MAY BE FORFEITED
If the requisitions of any such notice as aforesaid are not complied with,
any shares in respect of which such notice has been given may, at any time
thereafter, before payment of all calls or instalments, interest and
expenses due in respect thereof, be forfeited by resolution of the
Directors to that effect. Such forfeiture shall include all dividends
declared or accruing in respect of the forfeited shares, and not actually
paid before forfeiture.
33. NOTICE OF FORFEITURE
When any share shall have been so forfeited, notice of the resolution
shall be given to the person in whose name it stood immediately before the
forfeiture, and an entry of the forfeiture, with the date thereof, shall
forthwith be made in the Register.
34. FORFEITED SHARE TO BECOME PROPERTY OF COMPANY
Any share so forfeited shall be deemed to be the property of the Company,
and the Directors may sell, re-allot, or otherwise dispose of the same in
such manner as they think fit. A statutory declaration in writing that the
declarant is a Director or the Secretary of the Company and that a share
has been duly forfeited or surrendered or sold to satisfy a lien of the
Company on a date stated in the declaration shall be conclusive evidence
of the facts therein stated as against all persons claiming to be entitled
to the share. Such declaration and the receipt of the Company for the
consideration (if any) given for the share on the sale, re-allotment or
disposal thereof together with the share certificate delivered to a
purchaser or allottee thereof shall (subject to the execution of a
transfer if the same be required) constitute good title to the share and
the person to whom the share is sold, re-allotted or disposed of shall be
registered as the holder of the share and shall not be bound to see to the
application of
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the purchase money (if any) nor shall his title to the share be affected
by any irregularity or invalidity in the proceedings in reference to the
forfeiture, surrender, sale, re-allotment or disposal of the share.
35. POWER TO ANNUL FORFEITURE
The Directors may, at any time before any shares so forfeited shall have
been sold, re-allotted or otherwise disposed of, annul the forfeiture
thereof upon such conditions as they think fit.
36. ARREARS TO BE PAID NOTWITHSTANDING FORFEITURE
Any person whose shares have been forfeited shall, notwithstanding, be
liable to pay, and shall forthwith pay to the Company, all calls,
instalments, interest and expenses owing upon or in respect of such shares
at the time of the forfeiture, together with interest thereon from the
time of forfeiture until payment at seven per cent. per annum, and the
Directors may enforce the payment thereof if they think fit.
ALTERATION OF CAPITAL
37. CONSOLIDATION AND SUB-DIVISION OF CAPITAL
Subject to the provisions of the Companies Acts, the Company in General
Meeting may by resolution:-
(a) consolidate and divide its share capital into shares of a larger par
value than that fixed by the Company's Memorandum of Association;
(b) sub-divide its shares into shares of a smaller par value than that
fixed by the Company's Memorandum of Association;
(c) cancel shares which, at the date of the passing of such resolution
have not been taken or agreed to be taken by any person, and
diminish the amount of its share capital by the amount of the shares
so cancelled.
37A. PROCEDURE ON CONSOLIDATION
Upon any consolidation of fully-paid shares into shares of larger amount
the Directors may settle any difficulty which may arise with regard
thereto and in particular may as between the holders of shares so
consolidated determine which shares are consolidated into each
consolidated share and in the case of any shares registered in the name of
one holder (or joint holders) being consolidated with shares registered in
the name of another holder (or joint holders) may make such arrangements
for the allocation, acceptance or sale of the consolidated share and for
the distribution among the persons entitled thereto of any monies received
in respect thereof as may be thought fit and for the purpose of giving
effect thereto may appoint some person to transfer the consolidated share
or any fractions thereof and to receive the purchase
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price thereof and any transfer executed in pursuance thereof shall be
effective and after such transfer has been registered no person shall be
entitled to question its validity.
38. INCREASE OF CAPITAL
Subject to the provisions of the Companies Acts, the Company in General
Meeting may by resolution increase its share capital to such sum as the
resolution shall prescribe.
39. REDUCTION OF CAPITAL
Subject to the provisions of the Companies Acts, the Company in General
Meeting may by resolution reduce its share capital to such sum not less
than the minimum share capital prescribed by the Company's Memorandum of
Association as the resolution shall prescribe.
MEETINGS OF THE COMPANY
40. ANNUAL GENERAL MEETING
The Annual General Meeting of the Company shall be held once at least in
every calendar year at such place as may be designated in the notice of
meeting and a notice of such meeting shall be given by mail, telex or
cable to each Member at his address as shown in the Register, at least
five days before the meeting takes place, stating the time, date and place
and, as far as practicable, the objects of the meeting.
41. SPECIAL GENERAL MEETING
The Directors may convene a Special General Meeting of the Company at such
place as may be designated in the notice of meeting whenever in their
judgment such a meeting is necessary and such meeting shall be convened by
notice in like manner as the Annual General Meeting, at least five days
before the meeting takes place. Such notice shall state the time, date and
place, and as far as practicable, the objects of the meeting.
42. MEETING CALLED ON REQUISITION
A Special General Meeting of the Company called on the written requisition
of Members holding at the date of the deposit of the requisition not less
than one-tenth part in value of the paid-up capital of the Company as at
the date of the deposit carries the right of voting at General Meetings of
the Company shall be convened by notice in like manner as the Annual
General Meeting.
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43. QUORUM
At any General Meeting of the Company not less than two holders of Common
Shares present either in person or by proxy, shall form a quorum for the
transaction of business and if a quorum does not assemble within half an
hour after the time appointed for the meeting, the meeting, if convened on
the requisition of Members, shall be dissolved and in any other case shall
be adjourned to a future date as determined by the Directors. The
Directors shall give notice of the adjourned meeting in such manner as
they consider expedient.
44. VALIDITY OF MEETING CALLED ON SHORT NOTICE
A meeting of the Company shall, notwithstanding that it is called by
shorter notice than that specified in Bye-Laws 40 and 41, be deemed to
have been duly called if it is agreed (a) in the case of a meeting called
as the Annual General Meeting, by all the Members entitled to attend and
vote thereat and (b) in the case of any other meeting, by a majority in
number of the Members having a right to attend and vote thereat, being a
majority together holding not less than ninety-five per cent. in nominal
value of the shares giving the right to attend and vote at the meeting.
45. POWER TO ADJOURN GENERAL MEETING
The chairman of the meeting may, with the consent of the meeting, and
shall, if so directed by the meeting or (prior to or at the meeting) by
the Board of Directors (or a duly authorised committee thereof), adjourn
the meeting, from time to time and from place to place as the chairman of
the meeting shall determine (subject to any directions from the Board of
Directors or a duly authorised committee thereof). Whenever a meeting is
adjourned for more than five days, the Directors shall give notice of the
adjourned meeting in such manner as they consider expedient. No business
shall be transacted at any adjourned meeting other than the business which
might have been transacted at the meeting from which the adjournment took
place.
VOTING AT MEETINGS
46. VOTING RIGHTS
(1) Subject to any rights or restrictions attached to any class of shares, at
any meeting of the Company, each Member present in person shall be
entitled to one vote on any question to be decided on a show of hands and
each Member present in person or by proxy shall be entitled on a poll to
one vote for each share held by him.
Provided that no Member shall be entitled (save as proxy for another
Member) to be present or vote at any meeting, either personally or by
proxy, or to exercise any privilege in relation to meetings of the Company
conferred by membership, or be reckoned in a quorum:-
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(A) in respect of any share held by him (whether alone or jointly with
any other person) on which there shall not have been paid all calls
for the time being due and payable, together with interest and
expenses (if any); or
(B) in respect of any shares held by him in relation to which he or any
person appearing to be interested in such shares has been duly
served with a notice under paragraph (2) of this Bye-Law which:-
(i) requires him or such other person to give information to
the Company in accordance with such paragraph; and
(ii) contains a statement to the effect that upon failure to supply
such information before the expiry of a period specified in
such notice (being such reasonable period as the Directors
shall determine from the date of service of such notice) the
registered holder of such shares shall not be entitled to vote
or otherwise exercise the rights referred to in this Bye-Law
and the person on whom such notice was served fails to supply such
information within the period so specified.
Provided that:-
(a) the Company shall be entitled to serve a notice under
paragraph (2) of this Bye-Law which fulfils sub-sub-paragraphs
(i) and (ii) above on a person who is not the registered
holder of shares in the Company only if the registered holder
of the shares in question has previously been, or is
simultaneously with the service of such a notice, served by
the Company with a notice under paragraph (2) of this Bye-Law;
and
(b) the disqualification provisions of this sub-paragraph (B)
shall take effect only upon the service on the registered
holder of the shares in question of a notice to the effect
that he has thereby become subject to the said
disqualification for so long as the information requested
pursuant to this sub-paragraph (B) has not been supplied to
the Company and for a period of ninety days thereafter; and
(c) for the purpose of this sub-paragraph (B) a person shall be
treated as appearing to be interested in any shares if (after
taking into account any information supplied in response to
any notice under paragraph (2) of this Bye-Law and any other
information) the Company knows or has reasonable cause to
believe that the person in question is or may be interested in
the shares.
(C) in respect of any shares held by him in relation to which he or any
person appearing to be interested in such shares has been duly
served with a notice under Bye-Law 104 which:
17
(i) requires him or such other person to make an offer in
accordance with, or otherwise comply with the terms of, such
Bye-Law; and
(ii) contains a statement to the effect that upon failure to make
such an offer before the expiry of a period specified in such
notice (being not less than twenty-eight days from the date of
service of such notice) or, having made such an offer or
acquired such shares in contravention of a notice served under
that Bye-Law, otherwise fails to comply with the provisions of
Bye-Law 104 the registered holder of such shares shall not be
entitled to vote or otherwise exercise the rights referred to
in this Bye-Law
and the person on whom such notice was served fails to make such an
offer within the period so specified or fails to remedy such
non-compliance.
Provided that:-
(a) the Company shall be entitled to serve a notice under
paragraph (2) of this Bye-Law which fulfils sub-sub-paragraphs
(i) and (ii) above on a person who is not the registered
holder of shares in the Company only if the registered holder
of the shares in question has previously been, or is,
simultaneously with the service of such a notice, served by
the Company with a notice under Bye-Law 104; and
(b) the disqualification provisions of this sub-paragraph (C)
shall take effect only upon the service on the registered
holder of the shares in question of a notice to the effect
that he has thereby become subject to the said
disqualification and shall subsist until an offer is made in
accordance with Bye-Law 104 and such offer becomes or is
declared unconditional in all respects in accordance with its
terms.
(D) in respect of any shares in relation to which he and any person
specified in paragraph (3) of this Bye-Law has been duly served with
a notice under paragraph (3) which remains in effect.
(2) (A) The Company may by notice in writing require any person whom the
Company knows or has reasonable cause to believe to be interested in
shares in the Company to indicate whether or not it is the case and,
where that person holds any interest in any such shares, to give
such further information as may be required in accordance with
sub-paragraph (B) below.
(B) Any such notice may require the person to whom it is addressed to
give particulars of his own present interests in shares in the
Company.
(C) The particulars referred to above include particulars of the
identity of persons interested in the shares in question and of
whether persons interested in the same shares are parties to any
agreement or arrangement relating to the exercise of any of the
rights conferred by the holding of the shares.
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(D) A notice under this Bye-Law shall require any information given in
response to the notice to be given in writing within such reasonable
time as the Directors may determine and is specified in the notice.
(E) For the purposes of this Bye-Law, a person who is interested in a
right to subscribe for or convert into shares in the Company shall
be deemed to be interested in shares in the Company and references
to interests in shares shall include any interest whatsoever in such
shares including, without limitation, a right to control directly or
indirectly the exercise of any right conferred by the holding of
shares alone or in conjunction with a person deemed to be acting in
concert for the purposes of Bye-Law 104 and the interest of any
person shall be deemed to include the interest of any other person
deemed to be acting in concert as aforesaid.
(F) A notice which has taken effect under this Bye-Law shall remain in
effect in accordance with its terms following a transfer of the
shares to which it relates unless and until the Directors determine
otherwise and notify the registered holder accordingly.
(G) The right to receive payments of income or capital which become due
or payable in respect of any share during a period of
disqualification applicable to such share under this Bye-Law shall
be suspended during such period of disqualification without any
liability of the Company to the Member for late payment or
non-payment and the Company may retain such sums for its own use and
benefit during such period of suspension and the holders of such
shares may, in the discretion of the Directors, be excluded from
participation in any further issue of shares by reference to an
existing holding of shares at a point in time during such period of
suspension. No trust shall be created in respect of any such debt,
no interest shall be payable in respect of the same and the Company
shall not be required to account for any money earned on such
amount, which may be employed in the business of the Company or
invested in such investments as the Directors may from time to time
think fit.
(3) (A) Where any person whether alone or in circumstances where for the
purposes of Bye-Law 104 he is acting in concert with other persons
acquires or has acquired interests in shares which (including the
interests of persons with whom he is acting in concert as aforesaid)
amount to three per cent. or more of the issued share capital of any
class of the Company he shall within two days following the date on
which he became aware (or ought reasonably to have become aware) of
the acquisition of such an interest notify the Company of the
existence of such interest and shall in making such notification to
the Company also supply the particulars referred to in
sub-paragraphs (2)(B) and (2)(C) above and so long as his interest
as aforesaid amounts to three per cent. or more of the issued share
capital of any class of the Company he shall notify the Company of
any change in his interests (including the interests of persons with
whom he is acting in concert as aforesaid) amounting to one per
cent. or more of the issued share capital of any class of the
Company within two days
19
following the date on which he became aware (or ought reasonably to
have become aware) of such change.
(B) If any person has failed to make a notification in accordance with
sub-paragraph (3)(A) above (notwithstanding that such notification
has been made after the said period of two days) the Directors may
serve a notice on such person stating that the registered holder of
the shares in which that person is interested shall not be entitled
to vote or otherwise exercise the rights referred to in this Bye-Law
in respect of any shares or a number of shares specified in the
notice held by that registered holder during the one hundred and
eighty days following the service of such notice provided that the
registered holder of such shares has previously been, or is
simultaneously with the service of such a notice, served with a
notice under this sub-paragraph.
(C) If the Directors resolve that they have reasonable cause to believe
that a person is or may be interested in shares of the Company or
that any such shares are or may be shares in which any person is
interested and that they have made reasonable enquiries to establish
whether a person is so interested, or whether they are such shares,
as the case may be, such person shall for the purposes of this
Bye-Law be deemed to be interested in shares or, as the case may be,
such shares shall be deemed to be shares in which such person is
interested, from the date of such resolution until any such time as
the Directors resolve otherwise.
(D) Any belief, resolution or decision of the Directors which is held or
made in pursuance or purported pursuance of any of the provisions of
this Bye-Law shall be conclusive, final and binding on all persons
concerned, and the validity of any act or thing which is done or
caused to be done by the Directors in pursuance or purported
pursuance of any of such provisions shall not be capable of being
impeached by anyone on the ground that there was not any basis or
reasonable basis on which the Directors could have arrived at any
such belief or made any such resolution or decision, or on the
ground that any conclusion of fact on which the Directors relied or
might have relied for the purposes of arriving at any such belief or
making any such resolution or decision was incorrect, or on any
other ground whatsoever.
(E) In calculating the number of days allowed for any notification to be
made under this Bye-Law 46(3), any day which is a Saturday or Sunday
shall be disregarded.
47. JOINT HOLDERS
When there are joint holders of any shares any one of such persons may
exercise such voting rights as may attach to such shares, either
personally or by proxy, as if he were solely entitled thereto; and if more
than one of such joint holders be present at any General Meeting,
personally or by proxy, that one of the said persons whose name stands
first on the Register in respect of such shares shall alone be entitled to
exercise
20
the voting rights in respect thereof. Several executors or administrators
of a deceased Member in whose name any share stands shall for the purposes
of this Bye-Law be deemed joint holders thereof.
48. INSTRUMENT APPOINTING PROXY TO BE IN WRITING
(1) The instrument appointing a proxy shall be in writing under the hand of
the appointer or of his attorney, or, if such appointer is a company,
either under the hand of any duly appointed director or officer of such
company or under its common seal. The instrument appointing a proxy shall
be in any usual or common form or any other form which the Directors shall
from time to time approve or accept. No person shall be appointed a proxy
who is not a Member.
(2) The provisions of paragraph (1) of this Bye-Law 48 are in addition to and
not in derogation of any other statutory or other provision enabling a
company (wherever incorporated) which is a Member in this Company to
authorise a person to act as its representative at a meeting of the
Members of this Company.
49. DELIVERY OF PROXY
An instrument either appointing a proxy or evidencing an authorisation
made in the manner referred to in paragraph (2) of Bye-Law 48 shall be
left with the Registrar (or such other person or persons as may be stated
in the form of proxy circulated with the notice of meeting) not less than
24 hours, or such shorter time as may be stated in the form of proxy
circulated with the notice of the meeting, before the holding of the
meeting or adjourned meeting, as the case may be, at which the person
named in such instrument proposes to vote.
50. METHOD OF DETERMINING QUESTIONS
(1) Subject to the provisions of paragraph (3) of this Bye-Law 50, any
question proposed for consideration of the Members at any meeting shall be
decided on a show of hands and in such case, but subject to Bye-Law 46,
every Member present in person at such meeting shall be entitled to one
vote and shall cast such vote by raising his hand.
(2) At any meeting of the Members a declaration by the chairman that a
question proposed for consideration has, on a show of hands, been carried,
or carried unanimously or by a particular majority or lost then, an entry
to that effect in the minute book shall, subject to the provisions of
paragraph (3) of this Bye-Law 50, be conclusive evidence of that fact
without proof of the number or proportion of the votes recorded in favour
or against such question.
(3) Notwithstanding the provisions of paragraph (1) of this Bye-Law 50 but
subject to Bye-Law 46, at any General Meeting of the Company it shall be
lawful, in respect of any question proposed for consideration of the
Members (whether before or on the declaration of a show of hands as
provided for in paragraph (2) of this Bye-Law 50) for a poll to be
demanded by any of the following persons: -
21
(a) the Chairman of such 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 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 sum paid up on all
such shares conferring such rights.
51. VOTING ON POLL
Where a poll has been demanded, such poll shall be taken in the manner
provided by the Companies Acts.
DIRECTORS
52. NUMBER AND APPOINTMENT OF DIRECTORS
(A) The number of Directors shall be such number not less than two as the
Company in General Meeting may from time to time determine.
(B) No person other than a Director retiring at the meeting shall, unless
recommended by the Directors, be eligible for election to the office of
Director at any general meeting unless, not less than six and not more
than twenty-eight clear days before the day appointed for the meeting,
there has been given to the Secretary notice in writing by some Member
(not being the person to be proposed) entitled to attend and vote at the
meeting for which such notice is given of his intention to propose such
person for election and also notice in writing signed by the person to be
proposed of his willingness to be elected.
53. QUALIFICATION OF DIRECTORS
The qualification of a Director shall be the holding of one share of the
Company.
54. WHEN OFFICE OF DIRECTOR TO BE VACATED
The office of a Director shall IPSO FACTO be vacated:-
(1) if he ceases to be a Member;
(2) if by notice in writing to the Company he resigns his office;
(3) if he shall be removed from office pursuant to the provisions of
Bye-Law 71.
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55. GENERAL POWERS OF COMPANY VESTED IN DIRECTORS
The business of the Company shall be managed outside the United Kingdom by
the Directors, who may pay all expenses incurred in promoting and
incorporating the Company, and who, in addition to the powers and
authorities by these Bye-Laws or otherwise expressly conferred upon them,
may exercise all such powers and do all such acts and things as may be
exercised or done by the Company and are not hereby or by statute
expressly directed to be exercised or done by the Company in General
Meeting subject nevertheless to the provisions of any statute, and of
these Bye-Laws.
56. APPOINTMENT OF ATTORNEY
The Directors may from time to time and at any time by power of attorney
appoint any person to be the attorney of the Company for such purposes and
with such powers, authorities and discretions (not exceeding those vested
in the Directors) and for such period and subject to such conditions as
they may think fit, and such powers of attorney may contain such
provisions for the protection and convenience of persons dealing with any
such attorneys as the Directors may think fit and may also authorise any
such attorney to delegate all or any of the powers, authorities and
discretions vested in him.
57. POWER TO FILL CASUAL VACANCIES
The Directors shall have power from time to time and at any time to
appoint any qualified person to fill a casual vacancy in the Board of
Directors who shall hold office until the next following Annual General
Meeting, and the continuing Directors may act notwithstanding any vacancy
in their number.
58. POWER TO APPOINT CHIEF EXECUTIVE OFFICER
The Directors may, from time to time, appoint one or more of their body to
be a Chief Executive Officer of the Company, either for a fixed term or
without any limitation as to the period for which he or they is or are to
hold such office, and may from time to time remove or dismiss him or them
from office and appoint another or others in his or their place or places.
59. REMUNERATION OF CHIEF EXECUTIVE OFFICER
The remuneration of a Chief Executive Officer shall from time to time be
fixed by the Directors, and may be by way of salary, or commission, or
participation in profits, or by any or all of those modes.
60. POWERS OF CHIEF EXECUTIVE OFFICER
The Directors may from time to time entrust to and confer upon a Chief
Executive Officer for the time being such of the powers exercisable by the
Directors as they think fit, and may confer such powers for such time, and
to be exercised for such
23
objects and purposes, and upon such terms and conditions, and with such
restrictions as they think expedient; and they may confer such powers,
either collaterally with, or to the exclusion of, and in substitution for,
all or any of the powers of the Directors in that behalf; and may from
time to time revoke, withdraw, alter, or vary all or any of such powers.
61. POWER TO APPOINT SUPERVISOR OF FINANCIAL AFFAIRS
The Directors may from time to time appoint a person to exercise a general
supervision over the financial affairs of the Company in accordance with
and subject to the directions of the Directors. Such person shall submit
all accounts and vouchers to the Directors and/or to the Auditors whenever
so required and shall conform to such regulations and directions as the
Directors shall prescribe. Such person shall give to the Company such
security for the faithful performance of his duties in such manner as the
Directors shall from time to time require.
62. DUTIES OF DIRECTORS
The Directors shall exercise a general supervision over the financial
affairs of the Company and shall be responsible for the correct keeping of
the books and for the safe keeping of all monies and securities of the
Company, and shall submit their accounts and vouchers to the Auditors
whenever required so to do.
63. POWER TO DELEGATE TO COMMITTEES
The Directors may delegate any of their powers to committees consisting of
two or more of the Directors and (if thought fit) one or more other
persons co-opted as hereinafter provided but every such committee shall
conform to such directions as the Directors shall impose on them. Any such
directions may provide for or authorise the co-option to the committee of
persons other than Directors and for such co-opted members to have voting
rights as members of the committee but so that (a) the number of co-opted
members shall be less than one half of the total number of members of the
committee and (b) no resolution of the committee shall be effective unless
a majority of the members of the committee present at the meeting are
Directors.
64. DIRECTORS' INTERESTS
(1) A Director may hold any other office or place of profit under the Company
(other than the office of Auditor) in conjunction with his office of
Director for such period and on such terms (as to remuneration and
otherwise) as the Directors may from time to time determine.
(2) Any Director may act by himself or his firm in a professional capacity for
the Company, and he or his firm shall be entitled to remuneration for
professional services as if he were not a Director, provided that nothing
herein contained shall authorise a Director or his firm to act as Auditor
to the Company.
24
(3) A Director of the Company may be or become a director or other officer of,
or otherwise interested in, any company promoted by the Company or in
which the Company may be interested, and shall not be liable to account to
the Company or the Members for any remuneration, profit or other benefit
received by him as a director or officer of or from his interest in such
other company. The Director may also cause the voting power conferred by
the shares in any other company held or owned by the Company to be
exercised in such manner in all respects as it thinks fit, including the
exercise thereof in favour of any resolution appointing the Directors or
any of them to be directors or officers of such other company, or voting
or providing for the payment of remuneration to the directors or officers
of such other company.
(4) A Director shall not vote or be counted in the quorum on any resolution of
the Directors concerning his own appointment as the holder of any office
or place of profit with the Company or any other company in which the
Company is interested (including the arrangement or variation of the terms
thereof, or the termination thereof).
(5) Where arrangements are under consideration concerning the appointment
(including the arrangement or variation of the terms thereof, or the
termination thereof) of two or more Directors to offices or places of
profit with the Company or any other company in which the Company is
interested, a separate resolution may be put in relation to each Director
and in such case each of the Directors concerned shall be entitled to vote
(and be counted in the quorum) in respect of each resolution except that
concerning his own appointment (or the arrangement or variation of the
terms thereof, or the termination thereof) and except (in the case of an
office or place of profit with any such other company as aforesaid) where
the other company is a company in which the Director owns one per cent. or
more.
(6) Subject to the laws of Bermuda and to the next paragraph of this Bye-Law,
no Director or proposed or intending Director shall be disqualified by his
office from contracting with the Company, either with regard to his tenure
of any office or place of profit or as vendor, purchaser or in any other
manner whatever, nor shall any such contract or any other contract or
arrangement in which any Director is in any way interested be liable to be
avoided, nor shall any Director so contracting or being so interested be
liable to account to the Company or the Members for any remuneration,
profit or other benefits realised by any such contract or arrangement by
reason of such Director holding that office or of the fiduciary
relationship thereby established.
(7) A Director who to his knowledge is in any way, whether directly or
indirectly, interested in a contract or arrangement or proposed contract
or arrangement with the Company shall declare the nature of his interest
at the meeting of the Directors at which the question of entering into the
contract or arrangement is first taken into consideration, if he knows his
interest then exists, or in any other case at the first meeting of the
Directors after he knows that he is or has become so interested. A general
notice to the Directors given by a Director to the effect that he is a
member of a specified company or firm and is to be regarded as interested
in any contract or arrangement which may after the date of the notice be
made with such company or
25
firm shall be sufficient declaration of interest under this Bye-Law in
relation to any contract or arrangement so made; provided that no such
notice shall be effective unless either it is given at a meeting of the
Directors or the Director giving the same takes reasonable steps to secure
that it is brought up and read at the next meeting of the Directors after
it is given.
(8) Save as otherwise provided by these Bye-Laws, a Director shall not vote
(nor be counted in the quorum) on any resolution of the Directors in
respect of any contract or arrangement in which he is to his knowledge
materially interested, and if he shall do so his vote shall not be
counted, but this prohibition shall not apply to any of the following
matters namely:-
(i) any contract or arrangement for giving to such Director any security
or indemnity in respect of money lent by him or obligations
undertaken by him at the request of or for the benefit of the
Company or any Subsidiary;
(ii) any contract or arrangement for the giving by the Company of any
security to a third party in respect of a debt or obligation of the
Company or any Subsidiary which the Director has himself guaranteed
or secured in whole or in part;
(iii) any contract or arrangement by a Director to subscribe for shares,
debentures or other securities of the Company issued or to be issued
pursuant to any offer or invitation to shareholders or debenture
holders of the Company or any class thereof or to the public or any
section thereof, or to underwrite any shares, debentures or other
securities of the Company;
(iv) any contract or arrangement in which he is interested by virtue of
his interest in shares or debentures or other securities of the
Company or by reason of any other interest in or through the
Company;
(v) any contract or arrangement concerning any other company (not being
a company in which the Director owns one per cent. or more) in which
he is interested directly or indirectly whether as an officer,
shareholder, creditor or otherwise howsoever;
(vi) any proposal concerning the adoption, modification or operation of a
superannuation fund or retirement, death or disability benefits
scheme which relates both to Directors and employees of the Company
or of any of its Subsidiaries and does not accord to any Director as
such any privilege or advantage not generally accorded to the
employees to which such scheme or fund relates; and
(vii) any arrangement for the benefit of employees of the Company or of
any of its Subsidiaries under which the Director benefits in a
similar manner as the employees and does not accord to any Director
as such any privilege or advantage not generally accorded to the
employees to whom such arrangement relates.
26
(9) A company shall be deemed to be a company in which a Director owns one per
cent. or more if and so long as (but only if and so long as) he is (either
directly or indirectly) the holder of or beneficially interested in one
per cent. or more of any class of the equity share capital of such company
or of the voting rights available to members of such company. For the
purpose of this paragraph there shall be disregarded any shares held by a
Director as bare or custodian trustee and in which he has no beneficial
interest, any shares comprised in a trust in which the Director's interest
is in reversion or remainder if and so long as some other person is
entitled to receive the income thereof, and any shares comprised in an
authorised unit trust scheme in which the Director is interested only as a
unit holder.
(10) Where a company in which a Director holds one per cent. or more is
materially interested in a transaction, then that Director shall also be
deemed materially interested in such transaction.
(11) If any question shall arise at any meeting of the Directors as to the
materiality of the interest of a Director (other than the chairman of the
meeting) or as to the entitlement of any Director (other than such
chairman) to vote or be counted in the quorum and such question is not
resolved by his voluntarily agreeing to abstain from voting or not to be
counted in the quorum, such question shall be referred to the chairman of
the meeting and his ruling in relation to such other Director shall be
final and conclusive except in a case where the nature or extent of the
interest of the Director concerned as known to such Director has not been
fairly disclosed to the Directors. If any question as aforesaid shall
arise in respect of the chairman of the meeting such question shall be
decided by a resolution of the Directors (for which purpose such chairman
shall be counted in the quorum but shall not vote thereon) and such
resolution shall be final and conclusive except in a case where the nature
or extent of the interest of such chairman as known to such chairman has
not been fairly disclosed to the Directors.
(12) The Company may by resolution suspend or relax the provisions of this
Bye-Law to any extent or ratify any transaction not duly authorised by
reason of a contravention of this Bye-Law.
65. REMUNERATION OF DIRECTORS
(1) Each Director shall be entitled to receive such fees for his or her
services as a Director, if any, as the Directors may from time to time
determine, either in addition to or in lieu of any remuneration payable to
that Director in respect of any executive office or employment. Each
Director shall be paid or reimbursed for all expenses properly and
reasonably incurred by him or her in the conduct of the Company's business
or in the discharge of his or her duties as a Director.
(2) The Directors may from time to time determine that, subject to the
requirements of the Companies Acts, all or part of any fees or other
remuneration payable to any Director shall be provided in the form of
shares or other securities of the Company or any subsidiary of the
Company, or options or rights to acquire such shares or other securities,
on such terms as the Directors may decide.
27
(3) The Directors may grant special remuneration to any Director who, being
called upon, shall perform any special or extra services for or at the
request of the Company. Such special remuneration may be made payable to
such Director in addition to or in substitution for his ordinary
remuneration (if any) as a Director, and may be made payable by a lump sum
or by way of salary, or commission on the dividends or profits of the
Company or of any other company in which the Company is interested or
other participation in any such profits or otherwise, or by any or all or
partly by one and partly by another or other of those modes.
66. MEETINGS OF DIRECTORS
(1) The Directors may meet together for the dispatch of business, adjourn, and
otherwise regulate their meetings, as they think fit provided that no
meeting of the Directors may be held in the United Kingdom and any
decision reached or resolution passed at a meeting held in the United
Kingdom shall be void. Questions arising at any meeting shall be decided
by a majority of votes. In the case of an equality of votes the motion
shall be deemed to have been lost. A Director may, and the Secretary on
the requisition of a Director shall, at any time summon a meeting of the
Directors. Notice of meetings of the Directors may be by telephone or
otherwise.
(2) Subject to paragraph (1) above and to Bye-Law 64, a Director may
participate in a meeting of the Directors by telephone or any other form
of communications equipment which allows him to hear each of the other
Directors addressing the meeting and to address the other Directors
himself and a Director so participating may be counted in the quorum and
shall be entitled to vote.
67. QUORUM
The quorum necessary for the transaction of the business of the Directors
may be fixed by the Directors, and unless so fixed shall be two.
68. PROCEEDINGS OF COMMITTEE
The meetings and proceedings of any committee of the Directors appointed
under Bye-Law 63 shall be governed by the provisions of these Bye-Laws for
regulating the meetings and proceedings of the Directors, so far as the
same are applicable thereto. Without prejudice to the generality of the
foregoing no meeting of a committee may be held in the United Kingdom and
any decision reached or resolution passed at a meeting held in the United
Kingdom shall be void.
69. VALIDITY OF ACTS WHERE APPOINTMENT DEFECTIVE
All acts done by any meeting of the Directors or by any committee of
Directors, or by any person acting as a Director, shall, notwithstanding
that it be afterwards discovered that there was some defect in the
appointment of any such Director or person acting as
28
aforesaid, 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.
70. RESOLUTION WITHOUT MEETING
A resolution in writing signed by all the Directors or any written
resolution as is referred to in paragraph (b) of Bye-Law 71, shall be as
valid and effectual as if it had been passed at a meeting of the Directors
duly called and constituted.
71. REMOVAL OF DIRECTOR
Any Director may at any time be removed from office as a Director of the
Company: -
(a) by resolution of the Members to that effect;
(b) upon a written resolution specifying that a Director has been so
removed signed by all the other Directors of the Company for the
time being having been deposited at the registered office of the
Company for the time being.
Any person who may have been appointed to be an Alternate Director of the
Company to a Director who has been removed from office as hereinbefore
provided, shall cease to be an Alternate Director immediately upon the
removal of such Director as aforesaid. If appointment to an executive
office thereby automatically terminates, such removal shall be deemed to
be an act of the Company and shall have effect without prejudice to any
claim for damages for breach of any contract of service between such
Director and the Company.
72. ALTERNATE DIRECTORS
(1) At any General Meeting of the Company there may be elected a person or
persons to act as Alternate Directors to designated Directors and the
Company may at any such meeting authorise the Directors for the time being
in office to appoint such Alternate Directors.
(2) Any person appointed to be an Alternate Director shall have all the rights
and powers of the Directors to whom he is an alternate, save that he shall
not be entitled to attend and vote at any meeting of the Directors
otherwise than in the absence of such Director.
MINUTES
73. MINUTES TO BE RECORDED
(1) The Directors shall cause minutes to be duly entered in books provided for
the purpose: -
(a) of all appointments of officers;
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(b) of the names of the Directors present at each meeting of the
Directors and of any committee of the Directors;
(c) of all orders made by the Directors and committees of Directors; and
(d) of all resolutions and proceedings of General Meetings and of
meetings of the Directors and committees.
(2) Any such minutes of any meeting of the Directors, or of any committee, or
of the Company, if purporting to be signed by the chairman of that
meeting, or by the chairman of any succeeding meeting, shall be receivable
as PRIMA FACIE evidence of the matters stated in such minutes.
OFFICERS OTHER THAN DIRECTORS
74. OFFICERS
(1) The officers of the Company shall consist of a President, one or more
Vice-Presidents, a Secretary and such other officers as the Directors may
from time to time determine.
(2) The Directors shall as soon as conveniently may be after the election of
Directors choose or elect one of their number to be the President of the
Company, another to be the Vice-President of the Company and such other
person or persons to hold any other offices (including one or more
additional Vice-Presidencies) which the Directors may from time to time
determine as herein provided. If more than one person is proposed for any
of these offices, the election shall be by ballot or such manner as the
Directors may determine.
(3) The Secretary shall be appointed or elected by the Directors and shall
hold office during the pleasure of the Directors.
(4) A Treasurer may be appointed or elected by the Directors and if so
appointed or elected shall hold office during the pleasure of the
Directors.
(5) The same person may hold the offices of Secretary and Treasurer. A
Vice-President may also be the Secretary or the Treasurer or the
Secretary-Treasurer.
75. WHO TO BE CHAIRMAN OF MEETING
The Chairman of the Board (if any) shall act as chairman at all meetings
of the Members or of the Directors at which he is present. In his absence
the President, if present, shall be chairman and, in the absence of both
of them, a Vice-President shall be appointed or elected as chairman by
those present at the meeting; if none of these is present a chairman shall
be appointed or elected by those present at the meeting.
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76. DUTIES OF SECRETARY
The Secretary shall attend all meetings of the Company and of the
Directors to keep correct minutes of such meetings and enter the same in
proper books provided for the purpose. He shall perform such other duties
as are prescribed by the Companies Acts or these Bye-Laws, or as shall be
prescribed by the Directors. The Secretary shall receive such salary as
the Directors shall from time to time determine.
DIVIDENDS
77. DECLARATION
The Directors may from time to time declare dividends but no dividend
shall be payable except out of the profits of the Company available for
the purpose.
78. REVENUE RESERVES
The Directors may from time to time before declaring a dividend set aside
out of the profits of the Company such sum as they think proper as a
reserve fund to be used to meet contingencies or for equalising dividends
or for any other special purpose.
79. DECLARATION AND PAYMENT ACCORDING TO AMOUNTS PAID OR CREDITED AS PAID ON
SHARES; APPORTIONMENT
Subject to the rights of persons, if any, entitled to shares with special
rights as to dividend, all dividends shall be declared and paid according
to the amounts paid or credited as paid on the shares in respect whereof
the dividend is paid, but no amount paid or credited as paid on shares in
advance of calls shall be treated for the purposes of this Bye-Law as paid
on the shares. All dividends shall be apportioned and paid proportionately
to the amounts paid or credited as paid on the shares during any portion
or portions of the period in respect of which the dividend is paid; but if
any shares are issued on terms providing that they shall rank for dividend
as from a particular date such shares shall rank for dividend accordingly.
80. CASH DIVIDENDS TO BE PAYABLE IN POUNDS STERLING OR U.S. DOLLARS OR OTHER
CURRENCIES
(1) All cash dividends (which in this Bye-Law are referred to as "dividends")
in respect of every class of share of the Company shall be declared in
U.S. dollars.
(2) Unless a Member with a registered address in the United Kingdom of Great
Britain and Northern Ireland (who in these Bye-Laws is referred to as a
"U.K. Member") shall have elected by notice in writing to the Company in
such form as the Company may from time to time require to receive payment
of dividends in U.S. dollars, all dividends shall be paid to such U.K.
Member in pounds Sterling in accordance with the following provisions of
this Bye-Law.
31
(3) Subject always to the rights or restrictions attaching to any class of
shares, where a dividend or other cash distribution is payable to a Member
whose registered address is outside the United States of America and the
United Kingdom, the Directors may, in their discretion, determine that
such dividend or other cash distribution be paid in the currency of the
country in which such Member has his registered address and the amount of
such payment shall be determined in accordance with the following
provisions of this Bye-Law.
(4) Subject always to any rights or restrictions attached to any class of
shares and to the provisions of paragraph (3) above, unless a Member with
a registered address outside the United Kingdom of Great Britain and
Northern Ireland (who in these Bye-Laws is referred to as a "non-U.K.
Member") shall have elected by notice in writing to the Company in such
form as the Company may from time to time require to receive payment of
dividends in pounds Sterling, all dividends shall be paid to such non-U.K.
Member in U.S. dollars in accordance with the following provisions of this
Bye-Law.
(5) Where any dividends are payable in a currency other than U.S. dollars
pursuant to the preceding provisions of this Bye-Law then the amount of
dividends payable shall be equal to the amount of dividends otherwise
payable in U.S. dollars translated into such other currency at such rate
and calculated on such date as the Directors may, in their discretion,
consider appropriate.
81. DEDUCTION FROM DIVIDENDS
The Directors may deduct from the dividends payable to any Member all
monies due by him to the Company on account of calls or otherwise in
relation to shares of the Company.
82. PAYMENT OTHERWISE THAN IN CASH
The Directors may direct payment of a dividend in whole or in part by the
distribution of specific assets (and in particular of paid up shares or
debentures of any other company), provided always that no distribution
shall be made which would amount to a reduction of capital except in the
manner appointed by law. Where any difficulty, including, without
limitation, any legal or practical problem under the laws of, or the
requirements of any recognised regulatory body or any stock exchange in,
any territory, arises in regard to such distribution, the Directors may
settle the same as they think expedient and in particular may issue
fractional certificates, may fix the value for distribution of such
specific assets or any part thereof, may determine that cash payments
shall be made to any Members upon the footing of the value so fixed in
order to adjust the rights of all parties and may vest any such specific
assets in trustees as may seem expedient to the Directors.
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83. UNCLAIMED DIVIDENDS
All unclaimed dividends may be invested or otherwise made use of by the
Directors as they shall think fit, until the same be claimed and so that
the Company shall not thereby be constituted as a trustee in respect
thereof and any dividend unclaimed after a period of twelve years from the
date for payment of such dividend shall be forfeited and shall revert to
the Company.
CAPITALISATION OF PROFITS AND RESERVES
84. POWER TO CAPITALISE
The Directors may resolve that it is desirable to capitalise such sum as
they may determine out of any undistributed profits of the Company not
required for paying the dividends on any shares carrying a fixed
preferential dividend and any profits or surpluses carried and standing to
the credit of any reserve or reserves or other special account and any
other amounts lawfully available for such purpose and that such sum be
capitalised and appropriated to the Members in the proportions in which
such sum would have been divisible amongst them had the same been applied
in paying dividends instead of being capitalised and that such sum be
applied on their behalf, either in or towards paying up the amounts, if
any, for the time being unpaid on any shares held by such Members
respectively or in paying up in full unissued shares, debentures or
securities of the Company of a nominal amount equal to such profits to be
allotted and distributed credited as fully paid up to and amongst such
Members in the proportions aforesaid, or partly in the one way and partly
in the other.
84A. POWER TO EFFECT A CAPITALISATION ISSUE WITH A CASH OPTION
(1) Where the Directors resolve that a capitalisation issue of Common Shares
be made under Bye-Law 84 they may also resolve that such capitalisation
issue be made with cash option whereunder, subject as herein provided and
to the provisions of The Companies Acts, each Common Shareholder may elect
to forego his entitlement under such capitalisation issue (or such part
thereof as the Directors may determine) and to receive instead a payment
in cash to the extent and within the limits and on the terms and
conditions set out in this Bye-Law. The Directors shall cause an
announcement to be made of any resolution by them pursuant to this
paragraph (1) and shall send to the Common Shareholders affected thereby
notices of election as soon as practicable.
(2) If the Directors resolve as in paragraph (1) above, each holder of Common
Shares may (by notice in writing to the Company given in such form and
within such period as the Directors may from time to time determine) elect
to receive a payment in cash of an amount fixed by the Directors and
specified in the notice in lieu of each additional Common Share to which
he would otherwise be entitled, provided that the Directors may fix a
limit on the extent to which such an election shall be effective, whether
by reference to a part of any Common Shareholder's total entitlement to
additional Common Shares or to the total number of additional Common
Shares in respect of
33
which all such elections may be made on any occasion. Subject to any such
limits, any such election on the part of a Common Shareholder shall be
irrevocable.
(3) Payments to those Common Shareholders who elect to receive cash instead of
their entitlement to Common Shares under such a capitalisation issue
("Cash Electors") may be made either (a) out of profits of the Company
available for the payment of dividends or (b) out of the net proceeds of
sale of the Common Shares to which the Cash Electors would have been
entitled under such capitalisation issue but for their election to receive
cash, or partly in one way and partly in the other, as the Directors
determine. To the extent that the Directors determine that payment is to
be made as in (b) above, the Directors shall be entitled to sell the
additional Common Shares to which the Cash Electors would have been
entitled, to appoint some person to execute a transfer of those shares in
the names of the Cash Electors and to receive and deliver documents of
title to those shares. Any such transfer shall be as effective as if it
had been executed by the registered holder of such shares. The net
proceeds of sale shall be applied in or towards payment of the amounts due
to Cash Electors in respect of their cash entitlement and, to the extent
that they exceed that entitlement, may be retained by the Company for its
benefit.
(4) The Directors may on occasion determine that Common Shareholders resident
in territories where, in the opinion of the Directors, compliance with
local laws or regulations would be unduly onerous if the shareholders were
to receive additional Common Shares shall be deemed to have exercised
rights of election to receive cash.
(5) Unless a U.K. Member shall have served and not withdrawn such notice as is
referred to in paragraph (2) of Bye-Law 80, any cash sum to be paid to
such U.K. Member pursuant to this Bye-Law shall be paid in pounds
Sterling. Subject always to the provisions of paragraph (3) of Bye-Law 80
which shall apply, MUTATIS MUTANDIS, to this Bye-Law unless a non-U.K.
Member shall have served and not withdrawn such notice as is referred to
in paragraph (4) of Bye-Law 80, any cash sum to be paid to such non-U.K.
Member pursuant to this Bye-Law shall be paid in U.S. dollars.
(6) For the purpose of resolving the calculation referred to in this Bye-Law,
the Directors may convert U.S. Dollars to pounds Sterling and VICE VERSA
at such rate and calculated on such date as the Directors may, in their
discretion, consider appropriate.
84B. POWER TO GRANT SCRIP DIVIDEND OPTIONS
(1) The Directors may, subject as herein provided and to the provisions of The
Companies Acts, resolve (at the same time as they resolve to declare a
dividend in cash on the Common Shares) that each Common Shareholder may
irrevocably elect to forego his right to participate in such dividend (or
such part thereof as the Directors may determine) and to receive instead
an allotment of further Common Shares to the extent and within the limits
and on the terms and conditions set out in this Bye-Law. The Directors
shall announce any such decision as aforesaid in conjunction with any
announcement of the relevant dividend and shall send to the Common
Shareholders affected thereby notices of election as soon as practicable.
34
(2) If the Directors resolve as in paragraph (1) above, each holder of Common
Shares may (by notice in writing to the Company given in such form and
within such period as the Directors may from time to time determine)
irrevocably elect to forego the dividend in cash which otherwise would
have been paid (but only to the extent determined by the Directors under
paragraph (1) above) on all or so many of his Common Shares as he shall
specify in the notice of election and to receive in lieu such number of
further Common Shares to be allotted to him credited as fully paid as is
equal to the number resulting from resolving the following fraction (but
taking any fraction of a further Common Share to the next higher whole
number)
A X B
-----
C
where A equals the number of Common Shares in respect of which such
election has been made;
where B equals the amount per share of the dividend in cash foregone
(expressed in terms of U.S. dollars and cents); and
where C equals the average of the middle market quotations for the Common
Shares on any securities market selected by the Directors and on which
those shares are listed for the five business days immediately prior to
the day on which the Directors' decision is announced after deducting from
that average the amount per share of the dividend declared expressed in
terms of U.S. dollars and cents, fractions of a cent being rounded to the
nearest whole cent and 0.5 cents being rounded downwards.
(3) Following the receipt of a notice or notices of election the Directors
shall capitalise and appropriate out of the profits of the Company
available for distribution in accordance with The Companies Acts an amount
equal to the aggregate nominal value of the number of further Common
Shares required to be allotted to the holders of Common Shares who have
given notice of election as aforesaid and shall apply such amount in
paying up in full such number of further Common Shares.
(4) No scrip dividend option shall be made available unless the Company has
sufficient unissued shares and undistributed profits or reserves or such
other sums as may be lawfully applied for such purpose to give effect to
any elections which could be made thereunder.
(5) The Directors shall have power to authorise any person on behalf of the
electing Common Shareholders to enter into an agreement with the Company
providing for the allotment to them respectively of the Common Shares to
which they are entitled in lieu of their rights to the dividend so
foregone by them respectively and any agreement made under such authority
shall be effective and binding on the Common Shareholders concerned.
(6) The Directors may on any occasion determine that rights of election
hereunder shall not be made available to, or (as the case may be) shall be
deemed to have been
35
exercised by, Common Shareholders resident in territories where, in the
opinion of the Directors, compliance with local laws and/or regulations
would be unduly onerous.
(7) Unless a U.K. Member shall have served and not withdrawn such notice as is
referred to in paragraph (2) of Bye-Law 80, any cash sum to be paid to
such U.K. Member pursuant to this Bye-Law shall be paid in pounds
Sterling. Subject always to the provisions of paragraph (3) of Bye-Law 80
which shall apply, MUTATIS MUTANDIS, to this Bye-Law, unless a non-U.K.
Member shall have served and not withdrawn such notice as is referred to
in paragraph (4) of Bye-Law 80, any cash sum to be paid to such non-U.K.
Member pursuant to this Bye-Law shall be paid in U.S. dollars.
(8) For the purpose of resolving the calculation referred to in this Bye-Law,
the Directors may convert U.S. dollars to pounds Sterling and VICE VERSA
at such rate and calculated on such date as the Directors may, in their
discretion, consider appropriate.
85. POWERS INCIDENTAL THERETO
Whenever such a resolution as aforesaid whereunder a capitalisation issue
is or is to be made under Bye-Laws 84 to 84B (inclusive) shall have been
passed, the Directors shall make all appropriations and applications of
the undivided profits resolved to be capitalised thereby, and all
allotments and issues of fully paid shares, debentures or securities, if
any, and generally shall do all acts and things required to give effect
thereto, with full power to the Directors to make such provision by the
rounding up of fractions to the nearest whole number of such shares,
debentures or securities, by the issue of fractional certificates or by
payment in cash or otherwise as they think fit for the case of shares,
debentures or securities becoming distributable in fractions, and also to
authorise any person to enter on behalf of all the Members entitled
thereto into an agreement with the Company providing for the allotment to
them respectively, credited as fully paid up, of any further shares or
debentures to which they may be entitled upon such capitalisation or (as
the case may require) for the payment up by the Company on their behalf,
by the application thereto of their respective proportions of the profits
resolved to be capitalised, of the amounts or any part of the amounts
remaining unpaid on their existing shares, and any agreement made under
such authority shall be effective and binding on all such Members.
BORROWING POWERS
86. POWERS TO BORROW AND ISSUE SECURITIES
The Board may exercise all the powers of the Company to borrow money and
to mortgage or charge all or any part of the undertaking, property and
assets (present and future) and uncalled capital of the Company and to
issue debentures, bonds, notes and other securities, whether outright or
as collateral security for any debt, liability or obligation of the
Company or of any third party.
36
87. SPECIFIC MORTGAGES TO TRUSTEES
The Directors may, for the purpose of securing the payment of any such
bonds, debentures, or other securities as aforesaid, or the payment with
interest of any money so borrowed as aforesaid or payable under contract
or otherwise, make and carry into effect any arrangement which they may
deem expedient by assigning or conveying any property of the Company,
including its uncalled capital, to trustees.
ACCOUNTS
88. PROPER ACCOUNTS TO BE KEPT
The Directors shall cause proper records of account to be kept of all
transactions of the Company in such manner as to show the assets and
liabilities of the Company for the time being and the records of account
shall at all times be kept at the office of the Company or at such place
as the Directors may from time to time determine and shall always be open
to the inspection of the Directors subject always to the provisions of the
Companies Acts.
89. STATEMENT OF INCOME TO BE LAID BEFORE MEMBERS
At the Annual General Meeting in each year, the Directors shall lay before
the Members a Statement of Income.
90. BALANCE SHEET
The Directors shall cause to be made out in every calendar year and to be
laid before the Company in General Meeting a Balance Sheet as at the date
to which the Statement of Income is made up. Every Balance Sheet laid
before the Company in General Meeting shall be signed on behalf of the
Board by two of the Directors and the Auditors' Report shall be attached
to the Balance Sheet and the Auditors' Report shall be read to the meeting
and will be delivered or sent by post to the registered address of every
Member at such time as the Directors may determine, being not less than
seven days prior to the Annual General Meeting at which they are to be
considered.
AUDIT
91. AUDITORS
At the Annual General Meeting or at a subsequent Special General Meeting
in each year an independent representative of the Members shall be
appointed by them as Auditors of the accounts of the Company and such
Auditors shall hold office until the Members shall appoint other Auditors.
Such Auditors may be Members but no Directors or officers of the Company
shall, during their continuance in office, be eligible as Auditors.
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92. REMUNERATION OF AUDITORS
The remuneration of the Auditors shall be fixed by the Members at the time
of their appointment or subsequently and they may delegate this duty to
the Directors.
93. VACANCIES IN OFFICE OF AUDITORS
The Directors may fill any casual vacancy in the office of Auditors.
94. DUTY TO EXAMINE BOOKS, ETC.
(1) The Auditors shall examine such books, accounts and vouchers as may be
necessary for the performance of their duties.
(2) The Auditors shall make a report to the Members in respect of the accounts
examined by them and on every Balance Sheet laid before the Company in
General Meeting during their tenure of office, and the report shall
state:-
(a) whether or not they have obtained all the information and
explanations they have required; and
(b) whether in their opinion the Balance Sheet referred to in the report
is properly drawn up so as to present fairly the financial position
of the Company and the results of its operations for the period
under review.
(3) REPORT TO BE READ
The report of the Auditors shall be read at the General Meeting at which
the Balance Sheet is submitted.
(4) AUDITORS TO BE FURNISHED WITH LIST OF BOOKS ETC.
The Auditors of the Company shall be furnished with a list of all books
kept by the Company and shall at all times have the right of access to the
books and accounts and vouchers of the Company, and shall be entitled to
require from the Directors and officers of the Company such information
and explanations as may be necessary for the performance of their duties.
(5) RIGHT TO ATTEND MEETINGS
The Auditors of the Company shall be entitled to attend any General
Meeting of the Company at which any accounts which have been examined or
reported on by them are to be laid before the Company and to make any
statement or explanations they may desire with respect to the accounts,
and notices of every such meeting shall be given to the Auditors in the
manner prescribed for Members.
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NOTICES
95. HOW NOTICE TO BE SERVED
A notice may be served by the Company on any Member either personally or
by sending it through the post prepaid in an envelope addressed to such
Member at his address as registered in the Register.
96. NOTICES TO JOINT HOLDERS
Any notice required to be given to the Members shall with respect to any
shares held jointly by two or more persons be given to the person whose
name appears first in the Register.
97. WHEN DEEMED DELIVERED
Any notice served by post shall be deemed to have been served at the
expiration of twenty-four hours after the envelope containing it was
posted and, in proving such service, it shall be sufficient to prove that
the envelope containing the notice was properly addressed and prepaid and
the time when it was posted.
98. MEMBERS RESIDENT ABROAD
All notices being posted to addresses overseas shall so far as may be
practicable be forwarded by air mail.
98A. NOTICES SERVED ON NON-MEMBERS
Any notice served on non-Members under Bye-Law 46 or 104 may be served at
the last known address of the non-Member concerned and otherwise in
accordance with the provisions of Bye-Laws 95 to 98 inclusive.
WINDING UP
99. DISTRIBUTION IN SPECIE
If the Company shall be wound up the liquidator may, with the sanction of
the Company in General Meeting divide amongst the Members IN SPECIE or
kind the whole or any part of the assets of the Company (whether they
shall consist of property of the same nature or not) and may, for such
purpose set such value as he deems fair upon any property to be divided as
aforesaid and may determine how such division shall be carried out as
between the Members or different classes of Members.
The liquidator may, with like sanction, vest the whole or any part of such
assets in trustees upon such trusts for the benefit of the contributories
as the liquidator, with the like sanction, shall think fit, but so that no
Member shall be compelled to accept any shares or other securities whereon
there is any liability.
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SEAL
100. CUSTODY OF SEAL
(A) The Directors shall provide for the safe custody of the Seal, which shall
only be used by the authority of the Directors or a committee of the
Directors authorised by the Directors in that behalf, and every instrument
to which the Seal shall be affixed shall be signed by a Director and shall
be countersigned by the Secretary or by a second Director or by some other
person appointed by the Directors for the purpose, provided that the
Secretary or any Director may affix the Seal of the Company over his
signature only to any authenticated copies of these Bye-Laws, the Minutes
of meetings or any other documents required to be authenticated by him.
(B) Every certificate for shares or loan stock or representing any other form
of security of the Company (other than letters of allotment, receipts for
securities or certificates of deposit) shall be issued under the Seal or
under any official seal kept by the Company pursuant to Bye-Law 100B.
(C) Each certificate to which the Seal shall be affixed shall bear the
autographic signatures of at least one Director and the Secretary or other
person acting in the place of the Secretary, provided that the Directors
may by resolution determine (either generally or in any particular case or
cases) that such signatures shall be dispensed with, or shall be affixed
by means of some method or system of mechanical signature.
100A. OVERSEAS SEAL
(1) The Company may have for use in any territory, district, or place
elsewhere than in Bermuda an official seal (in these Bye-Laws referred to
as an "Overseas Seal"), which seal shall be a facsimile of the Seal.
(2) A deed or other document to which the Overseas Seal is duly affixed shall
bind the Company as if it had been sealed with the Seal.
(3) The Company having an Overseas Seal for use in any such territory,
district or place may, by writing under its Seal, authorise any person or
persons appointed for the purpose as its agent or agents in that
territory, district or place to affix the Overseas Seal to any deed or
other document to which the Company is party in that territory, district
or place.
(4) As between the Company and the person dealing with such an agent or
agents, the authority of such agent or agents continues during the period
(if any) mentioned in the instrument conferring the authority, or if no
period is there mentioned, then until notice of the revocation or
determination of the authority of such agent or agents has been given to
the person dealing with him.
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(5) The person affixing the Overseas Seal shall certify in writing on the deed
or other instrument to which the Overseas Seal is affixed the date on
which it is affixed.
(6) The powers referred to in this Bye-Law shall be vested in the Directors
and whenever in these Bye-Laws reference is made to the Seal the reference
shall, when and so far as may be applicable, be deemed to include any
Overseas Seal and any Securities Seal (as defined in Bye-Law 100B below).
100B. SECURITIES SEAL
(1) The Company may have, for use for sealing securities issued by the Company
and for sealing documents creating or evidencing securities so issued, an
official seal (in these Bye-Laws referred to as a "Securities Seal") which
is a facsimile of the Seal with the addition on its face of the word
"Securities".
(2) Each certificate to which the Securities Seal shall be affixed need not
bear any signature.
ALTERATION OF BYE-LAWS
101. ALTERATION OF BYE-LAWS
The Directors may from time to time revoke, alter, amend or add to these
Bye-Laws provided that no such revocation, alteration, amendment or
addition shall be operative unless and until it is confirmed at a
subsequent General Meeting of the Company.
INDEMNITY
102. INDEMNITY
Every Director, Secretary and other officer of the Company shall be
indemnified by the Company against, and it shall be the duty of the
Directors out of the funds of the Company to pay, all costs, losses and
expenses which any such officer may incur or become liable to by reason of
any contract entered into, or act or thing done by him as such officer, or
in any way in the discharge of his duties Provided always that the
indemnity contained in this Bye-Law shall not extend to any matter which
would render it void pursuant to the Companies Acts.
INDIVIDUAL RESPONSIBILITY OF DIRECTORS
103. INDIVIDUAL RESPONSIBILITY OF DIRECTORS
No Director, Secretary or other officer of the Company shall be liable for
the acts, receipts, neglects, or defaults of any other Director or
officer, or for joining in any receipt or other act for conformity, or for
any loss or expense happening to the Company through the insufficiency or
deficiency of title to any property acquired by order of the Directors for
or on behalf of the Company, or for the insufficiency or
41
deficiency of any security in or upon which any of the monies of the
Company shall be invested, or for any loss or damage arising from the
bankruptcy, insolvency, or tortious act of any person with whom any
monies, securities, or effects shall be deposited, or for any loss
occasioned by any error of judgment, omission, default, or oversight on
his part, or for any other loss, damage or misfortune whatever which shall
happen in relation to the execution of the duties of his office or in
relation thereto, unless the same happen through his own wilful
negligence, wilful default, fraud or dishonesty.
TAKE-OVER OFFERS FOR THE COMPANY
104. TAKE-OVER OFFERS FOR THE COMPANY
(1) (A) Where any person is or becomes interested, whether as a result of
transactions over a period of time or not, in shares in the capital
of the Company in circumstances in which he would be obliged to make
or extend an offer or offers to shareholders or holders of other
securities or rights referred to in paragraph (4) below of the
Company under the Rules for the time being of the City Code on
Take-overs and Mergers of the United Kingdom of Great Britain and
Northern Ireland (the "City Code", which expression shall include
any revision or modification thereof) issued by the Panel on
Take-overs and Mergers ("the Panel", which expression shall include
any body which succeeds to the functions of the said Panel) if the
Company was a company incorporated in the United Kingdom of Great
Britain and Northern Ireland to which the City Code applied, the
Directors may serve upon that person a notice requiring him to make
or extend an offer or offers in writing in accordance with the
requirements of the City Code in all respects as if the City Code
did apply to the Company but so that references in the City Code to
the Panel shall be construed, for the purposes of this Bye-Law, as
if they were references to the Board of Directors of the Company.
(B) Where any person has acquired, is in the process of acquiring, or
appears to the Directors likely to acquire an interest in shares in
the capital of the Company in circumstances in which he would be
subject to the Rules Governing Substantial Acquisitions of Shares
(the "SARs", which expression shall include any revision or
modification thereof) issued by the Panel, if the Company was a
company incorporated in the United Kingdom of Great Britain and
Northern Ireland to which the SARs applied, the Directors may serve
upon that person a notice requiring him to comply with the
provisions of the SARs in relation to any acquisition made (after
the date of adoption of this paragraph (1)(B)) or proposed to be
made by him and if that person has made (after the date of adoption
of this paragraph (1)(B)) or subsequently makes any acquisition in
contravention of the provisions of the SARs such a notice or a
further notice issued by the Directors may require that person to
dispose or to procure the disposal by any person with whom he has
acted in concert of any interest in shares so acquired within
twenty-eight days of the date of such notice.
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(C) If a notice served under paragraph (1)(B) requiring a disposal of
shares is not complied with in accordance with its terms and has not
been withdrawn, the Directors may, so far as they are able, dispose
of the shares to which such notice relates at the best price
reasonably obtainable in all the circumstances in which case they
shall give written notice of such disposal to the person or persons
on whom such notice was served. Except as hereinafter provided such
a disposal shall be completed as soon as reasonably practicable
after the giving of a notice under this paragraph (1)(C) as may in
the opinion of the Directors be consistent with obtaining the best
price reasonably obtainable and in any event within thirty days of
expiry of such notice provided that a disposal under this paragraph
(1)(C) shall be suspended during the period when dealings by the
Directors in the Company's shares are not permitted either by law or
by the regulations of any stock exchange upon which those shares of
the Company which are to be disposed of are listed, but any disposal
under this paragraph which is suspended as aforesaid shall be
completed within thirty days after expiry of the period of such
suspension and provided further that neither the Company nor the
Directors shall be liable to any holder or any person having an
interest in any share or other person for failing to obtain the best
price so long as the Directors act in good faith within the period
specified above.
(D) For the purpose of effecting any disposal under paragraph (1)(C)
above, the Directors may authorise in writing any officer or
employee of the Company to execute any necessary transfer on behalf
of any holder and may issue a new certificate to the purchaser. The
net proceeds of such disposal shall be received by the Company,
whose receipt shall be a good discharge for the purchase money, and
shall be paid (without any interest being payable thereon) to the
former holder upon surrender by him of the certificate in respect of
the shares sold and formerly held by him.
(E) The provisions of these Bye-Laws relating to the protection of
purchasers of shares sold under a lien or upon forfeiture shall
apply MUTATIS MUTANDIS to disposals under this Bye-Law.
(2) Any notice served under paragraph (1) above may also require the person on
whom it is served to execute an undertaking under seal in favour of the
Directors (as trustees for all the holders of shares in the capital of the
Company) and in a form satisfactory to the Directors to observe and
perform the rules and requirements of the City Code or the SARs as the
case may be as if the same were applicable to the Company and in the
manner prescribed in paragraph (1) above.
(3) Where any person is interested, whether as a result of a series of
transactions over a period of time or not, in Common Shares which (taken
together with shares held or acquired by persons acting in concert with
him) represent 30 per cent. or more of all the Common Shares for the time
being in issue and the Directors determine that it is not expedient to
serve a notice under paragraph (1)(A) above or if any person upon whom
such a notice is served fails within thirty days to comply with the same,
the Directors may serve upon that person a notice requiring him to make an
offer in
43
writing (the "Offer"), within 30 days of the date of such notice on the
basis set out in the following paragraphs, to the holders of every class
of share capital of the Company (whether voting or non-voting) to purchase
all such shares for cash on terms that payment in full therefor will be
made within 21 days of the Offer becoming or being declared unconditional
in all respects.
(4) Where the Directors serve a notice upon any person in accordance with
paragraph (3) above, they may also include in that notice a requirement
that such person shall make an appropriate offer or proposal in writing to
the holders of every class of securities convertible into, or of rights to
subscribe for, share capital of the Company (whether such share capital is
voting or non-voting). Such appropriate offer or proposal is referred to
in this Bye-Law as a "Convertible Offer". The Convertible Offer shall be
made at the same time as the Offer. The terms of the Convertible Offer
shall be such terms as the Directors, in their absolute discretion,
consider to be fair and reasonable having regard to the terms of the Offer
and the Directors shall notify such terms to the person specified in
paragraph (3) above (the "Offeror"). The Convertible Offer shall be
conditional only upon the Offer becoming or being declared unconditional
in all respects.
(5) In addition to the Offeror, the Directors may require, in their absolute
discretion, each of the principal members of a group of persons acting in
concert with him and who appear to be interested in any shares in, or
convertible securities of, the Company to make the Offer and/or the
Convertible Offer. For the purposes of this Bye-Law, persons shall be
deemed to be acting in concert if, pursuant to an agreement or
understanding (whether formal or informal) they actively co-operate in
acquiring or seeking to acquire shares in, or convertible securities of,
the Company.
(6) Unless the Directors otherwise agree, an offer made under paragraphs (3),
(4) or (5) of this Bye-Law must, in respect of each class of share capital
or convertible securities involved, be in cash or be accompanied by a cash
alternative offer at not less than the highest price paid by the Offeror
or any person acting in concert with it for shares or convertible
securities of that class within the preceding 12 months. If such price
cannot be ascertained by the Directors or if such shares or convertible
securities have been acquired other than for cash pursuant to a bargain
made on any recognised stock exchange or if the Directors consider that
such highest price is, for any reason, inappropriate, unfair or
unreasonable having regard to the size and timing of the relevant
purchases, the relationship (if any) between the seller and purchaser of
such shares or convertible securities or the number of shares or
convertible securities purchased in the preceding 12 months, the Directors
may, in any such case, fix the price at which the Offer, the Convertible
Offer or the cash alternative offer is to be made. The cash Offer, the
cash Convertible Offer or the cash alternative offer must, in each case,
remain open for not less than 14 days after the date on which the Offer or
the Convertible Offer, as the case may be, has become or is declared to be
unconditional as to acceptances.
(7) Any person who makes or is about to make or who is or can be required to
make an offer under this Bye-Law or who has made such an offer which has
lapsed, shall observe and shall procure that any persons acting in concert
with him shall observe the
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rules and requirements of the City Code both in letter and in spirit prior
to, during the pursuit of and, if applicable, after the failure of such an
offer.
(8) For the purposes of this Bye-Law, any questions or disputes arising out of
the grant of consent by the Directors, the comparability of offers, the
terms of offers, any question as to whether any person shall be regarded
as acting in concert with another, any question regarding the
interpretation or application of the City Code and the meaning of any
terms or phrases used in this Bye-Law or the City Code shall be determined
by the Directors in their absolute discretion.
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Bye-Laws - Tyco International Ltd.
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