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Title: |
Bye-Laws |
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Date: |
2000 |
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Preview shows 32KB of 148KB total |
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$45 |
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ID: |
#394894 |
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BYE-LAWS
OF
ORIENT-EXPRESS HOTELS LTD.
INTERPRETATION
1. (1) In these Bye-Laws unless the context otherwise requires -
"A SHARES" means the Class A Common Shares, par value $0.01
per share, of the Company;
"B SHARES" means the Class B Common Shares, par value $0.01
per share, of the Company;
"BERMUDA" means the Islands of Bermuda;
"BOARD" means the Board of Directors of the Company or the
Directors present at a meeting of Directors at which there is
a quorum;
"THE COMPANIES ACTS" means every Bermuda statute from time to
time in force concerning companies insofar as the same applies
to the Company;
"COMPANY" means the company named Orient-Express Hotels Ltd.
incorporated in Bermuda on October 16, 1987;
"DIRECTOR" means such person or persons as shall be appointed
to the Board from time to time pursuant to Bye-Law 71.
"OFFICER" means a person appointed by the Board pursuant to
Bye-Law 98 of these Bye-Laws and shall not include an auditor
of the Company;
"PAID UP" means paid up or credited as paid up;
"REGISTER" means the Register of Shareholders of the Company
and includes any branch or sub-register;
"REGISTRAR" means any person appointed to perform the duties
of a registrar of shares and, if no such person shall be
appointed, means the Secretary;
"REGISTERED OFFICE" means the registered office for the time
being of the Company;
"RESIDENT REPRESENTATIVE" means the individual (or, if
permitted in accordance with the Companies Acts, the company)
appointed to perform the duties of
{PAGE}
resident representative set out in the Companies Acts and
includes any assistant or deputy Resident Representative
appointed by the Board to perform any of the duties of the
Resident Representative;
"RESOLUTION" means a resolution of the Shareholders or, where
required, of a separate class or separate classes of
Shareholders, adopted in general meeting in accordance with
the provisions of these Bye-Laws;
"SCL" means the company named Sea Containers Ltd. incorporated
in Bermuda on June 3, 1974;
"SEAL" means the common seal of the Company and includes any
duplicate or facsimile thereof;
"SECRETARY" includes a temporary or assistant or deputy
Secretary and any person appointed by the Board to perform any
of the duties of the Secretary;
"SHAREHOLDER" means a shareholder or member of the Company;
and
"THESE BYE-LAWS" means these Bye-Laws in their present form or
as from time to time amended;
(2) For the purposes of these Bye-Laws a company shall be deemed
to be present in person if its representative duly authorised
pursuant to the Companies Acts is present;
(3) Words importing only the singular number include the plural
number and vice versa;
(4) Words importing only the masculine gender include the feminine
and neuter genders respectively;
(5) Words importing persons include individuals, firms, companies,
corporations, trusts or other entities, or associations or
bodies of persons, whether corporate or un-incorporate;
(6) Reference to writing shall include typewriting, printing,
lithography, photography and other modes of representing or
reproducing words in a legible and non-transitory form;
(7) Any words or expressions defined in the Companies Acts shall
bear the same meaning in these Bye-Laws unless otherwise
defined herein;
(8) The word "may" shall be construed as permissive and the word
"shall" shall be construed as imperative.
2
{PAGE}
REGISTERED OFFICE
2. The Registered Office shall be at such place in Bermuda as the Board
shall from time to time appoint.
SHARE RIGHTS
3. Any share in the Company may be issued with or have attached thereto
such preferred, deferred, qualified or other special rights, privileges
or conditions or such restrictions, whether in regard to dividend,
voting, return of capital or otherwise, as the Board may from time to
time determine. The respective rights and restrictions attached to the
A Shares and the B Shares are as set forth in Schedules 1 and 2 (as the
same may be amended from time to time) to these Bye-Laws, which
Schedules shall be deemed to be incorporated in and form part of this
Bye-Law 3.
4. (1) Subject to the Companies Acts, any preference shares may, with
the sanction of a resolution of the Board, be issued on terms:
(a) that they are to be redeemed on the happening of a
specified event or on a given date; and/or,
(b) that they are liable to be redeemed at the option of
the Company. The terms and manner of redemption shall
be provided for in such resolution of the Board and
shall be attached to but shall not form part of these
Bye-Laws.
(2) The terms and manner of redemption of any other 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 authorized,
as the Board or any committee thereof may by resolution
determine before the issuance of such shares, such resolution
to be attached as a Schedule to these Bye-Laws.
(3) The Company may from time to time purchase its own shares on
such terms and in such manner as may be authorized by the
Board.
3
{PAGE}
5. The Company may adopt a scheme or arrangement (hereinafter called a
"shareholder rights plan") binding upon the Company or a successor to
it or its assets or earning power and upon the Shareholders, present
and future, and providing for the creation and issuance of rights
entitling the Shareholders of the Company, or certain of them, to
acquire from the Company shares of any class or assets of the Company
or a subsidiary of the Company or otherwise, and the terms and
conditions of such shareholder rights plan and rights may be amended or
modified either (i) as the Company may in general meeting determine or
(ii) as the Directors or any committee thereof may determine, such
shareholder rights plan to be attached as a Schedule to these Bye-Laws.
MODIFICATION OF RIGHTS
6. Subject to the Companies Acts, all or any of the special rights for the
time being attached to any class of shares for the time being issued
may, unless otherwise provided in the rights attaching to or by the
terms of issue of the shares of that class, from time to time (whether
or not the Company is being wound up) be altered or abrogated with the
sanction of a Resolution passed by a simple majority at a separate
general meeting of the holders of the issued shares of that class. To
any such separate general meeting, all the provisions of these Bye-Laws
as to general meetings of the Company shall MUTATIS MUTANDIS apply, but
so that the necessary quorum shall be persons holding or representing
by proxy a majority of the shares of the relevant class and that every
holder of shares of the relevant class shall be entitled on a poll to
one vote for every such share held by him.
7. The special rights conferred upon the holders of any shares or class of
shares shall not, unless otherwise expressly provided in the rights
attaching to or the terms of issue of such shares, be deemed to be
altered by the creation or issue of further shares ranking pari passu
therewith.
4
{PAGE}
SHARES
8. Subject to the provisions of these Bye-Laws, the unissued shares of the
Company (whether forming part of the original capital or any increased
capital) shall be at the disposal of the Board, which may offer, allot,
grant options over or distribute rights in respect of, or otherwise
issue or dispose of them or options over or rights in respect of them,
to such persons, at such times and for such consideration (if any) and
upon such terms and conditions as the Board may determine.
9. The Board may in connection with the issue of any shares exercise all
powers of paying commission, discount and brokerage conferred or
permitted by law.
10. Except as ordered by a court of competent jurisdiction or as required
by law, no person shall be recognised by the Company as holding any
share upon trust and the Company shall not be bound by or required in
any way to recognise (even when having notice thereof) any equitable,
contingent, future or partial interest in any share or any interest in
any fractional part of a share or (except only as otherwise provided in
these Bye-Laws, or by law) any other right in respect of any share
except an absolute right to the entirety thereof in the registered
holder.
CERTIFICATES
11. The preparation, issue and delivery of certificates shall be governed
by the Companies Acts or other applicable law. In the case of a share
held jointly by several persons, delivery of a certificate to one of
several joint holders shall be sufficient delivery to all.
12. If a share certificate is defaced, lost or destroyed it may be replaced
without fee payable to the Company but on such terms (if any) as to
evidence and indemnity and to payment of the costs and out of pocket
expenses of the Company in investigating such evidence and preparing
such indemnity as the Board may think fit and, in case of defacement,
on delivery of the old certificate to the Company.
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{PAGE}
13. All certificates for share or loan capital or other securities of the
Company (other than letters of allotment, scrip certificates and other
like documents) shall, except to the extent that the terms and
conditions for the time being relating thereto otherwise provide, be
issued under the Seal. The Board may by resolution determine, either
generally or in any particular case, that any signatures on any such
certificates need not be autographic but may be affixed to such
certificates by some mechanical means or may be printed thereon or that
such certificates need not be signed by any persons.
LIEN
14. The Company shall have a first and paramount lien on every share (not
being a fully paid share) for all moneys, whether presently payable or
not, called or payable, at a date fixed by or in accordance with the
terms of issue of such share in respect of such share, and the Company
shall also have a first and paramount lien on every share (other than a
fully paid share) standing registered in the name of a Shareholder,
whether singly or jointly with any other person, for all the debts and
liabilities of such Shareholder or his estate to the Company, whether
the same shall have been incurred before or after notice to the Company
of any interest of any person other than such Shareholder, and whether
the time for the payment or discharge of the same shall have actually
arrived or not, and notwithstanding that the same are joint debts or
liabilities of such Shareholder or his estate and any other person,
whether a Shareholder or not. The Company's lien on a share shall
extend to all dividends payable thereon. The Board may at any time,
either generally or in any particular case, waive any lien that has
arisen or declare any share to be wholly or in part exempt from the
provisions of this Bye-Law.
15. The Company may sell, in such manner as the Board may think fit, any
share 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 (14) days after a notice in writing,
stating and demanding payment of the sum presently payable and giving
notice of the intention to sell in default of such payment, has been
served on the holder for the time being of the share.
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{PAGE}
16. The net proceeds of sale by the Company of any shares on which it has a
lien shall be applied in or towards payment or discharge of the debt or
liability in respect of which the lien exists so far as the same is
presently payable, and any residue shall (subject to a like lien for
debts or liabilities not presently payable as existed upon the share
prior to the sale) be paid to the person who was the holder of the
share immediately before such sale. For giving effect to any such sale,
the Board may authorise some person to transfer the share sold to the
purchaser thereof. The purchaser shall be registered as the holder of
the share and he shall not be bound to see to the application of the
purchase money, nor shall his title to the share be affected by any
irregularity or invalidity in the proceedings relating to the sale.
CALLS ON SHARES
17. The Board may from time to time make calls upon the Shareholders in
respect of any moneys unpaid on their shares (whether on account of the
par value of the shares or by way of premium) and not by the terms of
issue thereof made payable at a date fixed by or in accordance with
such terms of issue, and each Shareholder shall (subject to the Company
serving upon him at least fourteen (14) days notice specifying the time
or times and place of payment) pay to the Company at the time or times
and place so specified the amount called on his shares. A call may be
revoked or postponed as the Board may determine.
18. A call may be made payable by instalments and shall be deemed to have
been made at the time when the resolution of the Board authorising the
call was passed.
19. The joint holders of a share shall be jointly and severally liable to
pay all calls in respect thereof.
20. If a sum called in respect of the share shall not be 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 the
payment thereof to the time of actual payment at such
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{PAGE}
rate as the Board may determine, but the Board shall be at liberty to
waive payment of such interest wholly or in part.
21. Any sum which, by the terms of issue of a share, becomes payable on
allotment or at any date fixed by or in accordance with such terms of
issue, whether on account of the nominal amount of the share or by way
of premium, shall for all the purposes of these Bye-Laws be deemed to
be a call duly made, notified 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, forfeiture or otherwise shall apply as if such sum had become
payable by virtue of a call duly made and notified.
22. The Board may on the issue of shares differentiate between the
allottees or holders as to the amount of calls to be paid and the times
of payment.
FORFEITURE OF SHARES
23. If a Shareholder fails to pay any call or instalment of a call on the
day appointed for payment thereof, the Board may at any time thereafter
during such time as any part of such call or instalment remains unpaid
serve a notice on him requiring payment of so much of the call or
instalment as is unpaid, together with any interest which may have
accrued.
24. The notice shall name a further day (not being less than fourteen (14)
days from the date of the notice) on or before which, and the place
where, the payment required by the notice is to be made and shall state
that, in the event of non-payment on or before the day and at the place
appointed, the shares in respect of which such call is made or
instalment is payable will be liable to be forfeited. The Board may
accept the surrender of any share liable to be forfeited hereunder and,
in such case, references in these Bye-Laws to forfeiture shall include
surrender.
8
{PAGE}
25. If the requirements of any such notice as aforesaid are not complied
with, any share in respect of which such notice has been given may at
any time thereafter, before payment of all calls or instalments and
interest due in respect thereof has been made, be forfeited by a
resolution of the Board to that effect. Such forfeiture shall include
all dividends declared in respect of the forfeited shares and not
actually paid before the forfeiture.
26. When any share has been forfeited, notice of the forfeiture shall be
served upon the person who was before forfeiture the holder of the
share, but no forfeiture shall be in any manner invalidated by any
omission or neglect to give such notice as aforesaid.
27. A forfeited share shall be deemed to be the property of the Company and
may be sold, re-offered or otherwise disposed of either to the person
who was, before forfeiture, the holder thereof or entitled thereto or
to any other person upon such terms and in such manner as the Board
shall think fit, and at any time before a sale, re-allotment or
disposition the forfeiture may be cancelled on such terms as the Board
may think fit.
28. A person whose shares have been forfeited shall thereupon cease to be a
Shareholder in respect of the forfeited shares but shall,
notwithstanding the forfeiture, remain liable to pay to the Company all
moneys which at the date of forfeiture were presently payable by him to
the Company in respect of the shares with interest thereon at such rate
as the Board may determine from the date of forfeiture until payment,
and the Company may enforce payment without being under any obligation
to make any allowance for the value of the shares forfeited.
29. An affidavit in writing that the deponent is a Director of the Company
or the Secretary and that a share has been duly forfeited on the date
stated in the affidavit shall be conclusive evidence of the facts
therein stated as against all persons claiming to be entitled to the
share. The Company may receive the consideration (if any) given for the
share on the sale, re-allotment or disposition thereof and the Board
may authorise some person to transfer the share to the person to whom
the same is sold, re-allotted or disposed of, and he shall thereupon be
registered as the holder of the share and shall not be bound to see to
the application of the purchase money (if any) nor shall his title to
the
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{PAGE}
share be affected by any irregularity or invalidity in the proceedings
relating to the forfeiture, sale, re-allotment or disposal of the
share.
REGISTER OF SHAREHOLDERS
30. The Secretary shall establish and maintain the Register in Bermuda in
the manner prescribed by the Companies Acts. Unless the Board otherwise
determines, the Register shall be open to inspection in the manner
prescribed by the Companies Acts between 10.00 a.m. and 12.00 noon on
every working day. Unless the Board so determines, no Shareholder or
intending Shareholder shall be entitled to have entered in the Register
any indication of any trust or any equitable, contingent, future or
partial interest in any share or any interest in any fractional part of
a share and if any such entry exists or is permitted by the Board it
shall not be deemed to abrogate any of the provisions of Bye-Law 10.
REGISTER OF DIRECTORS AND OFFICERS
31. The Secretary shall establish and maintain a register of the Directors
and Officers of the Company as required by the Companies Acts. The
register of Directors and Officers shall be open to inspection in the
manner prescribed by the Companies Acts between 10:00 a.m. and 12:00
noon on every working day.
TRANSFER OF SHARES
32. Subject to the Companies Acts and to such of the restrictions contained
in these Bye-Laws as may be applicable, any Shareholder may transfer
all or any of his shares by an instrument of transfer in the usual
common form or in any other form which the Board may approve.
33. The instrument of transfer of a share shall be signed by or on behalf
of the transferor and where any share is not fully-paid, the transferee
and the transferor shall be deemed to remain the holder of the share
until the name of the transferee is entered in the Register
10
{PAGE}
in respect thereof. All instruments of transfer when registered may be
retained by the Company. The Board may, in its absolute discretion and
without assigning any reason therefor, decline to register any transfer
of any share which is not a fully-paid share. The Board may also
decline to register any transfer unless:
(1) the instrument of transfer is duly stamped and lodged with the
Company, accompanied by the certificate for the shares to
which it relates, and such other evidence as the Board may
reasonably require to show the right of the transferor to make
the transfer, or
(2) the instrument of transfer is in respect of only one class of
share, or
(3) where applicable, the permission of the Bermuda Monetary
Authority with respect thereto has been obtained.
Subject to any directions of the Board from time to time in force, the
Registrar may exercise the powers and discretions of the Board under
this Bye-Law and Bye-Laws 32 and 34.
34. If the Board declines to register a transfer it shall, within three
months after the date on which the instrument of transfer was lodged,
send to the transferee notice of such refusal.
35. No fee shall be charged by the Company for registering any transfer,
probate, letters of administration, certificate of death or marriage,
power of attorney, distringas or stop notice, order of court or other
instrument relating to or affecting the title to any share, or
otherwise making an entry in the Register relating to any share.
TRANSMISSION OF SHARES
36. In the case of the death of a Shareholder, the survivor or survivors,
where the deceased was a joint holder, and the estate representative,
where he was sole holder, shall be the only person recognised by the
Company as having any title to his shares; but nothing herein contained
shall release the estate of a deceased holder (whether the sole or
joint) from any liability in respect of any share held by him solely or
jointly with other persons. For the purpose of this Bye-Law, estate
representative means the person to
11
{PAGE}
whom probate or letters of administration has or have been granted or,
failing any such person, such other person as the Board may in its
absolute discretion determine to be the person recognised by the
Company for the purpose of this Bye-Law.
37. Any person becoming entitled to a share in consequence of the death of
a Shareholder or otherwise by operation of applicable law may, subject
as hereafter provided and upon such evidence being produced as may from
time to time be required by the Board as to his entitlement, either be
registered himself as the holder of the share or elect to have some
person nominated by him registered as the transferee thereof. If the
person so becoming entitled elects to be registered himself, he shall
deliver or send to the Company a notice in writing signed by him
stating that he so elects. If he shall elect to have his nominee
registered, he shall signify his election by signing an instrument of
transfer of such share in favour of his nominee. All the limitations,
restrictions and provisions of these Bye-Laws relating to the right to
transfer and the registration of transfer of shares shall be applicable
to any such notice or instrument of transfer as aforesaid as if the
death of the Shareholder or other event giving rise to the transmission
had not occurred and the notice or instrument of transfer was an
instrument of transfer signed by such Shareholder.
38. A person becoming entitled to a share in consequence of the death of a
Shareholder or otherwise by operation of applicable law shall (upon
such evidence being produced as may from time to time be required by
the Board as to his entitlement) be entitled to receive and may give a
discharge for any dividends or other moneys payable in respect of the
share, but he shall not be entitled in respect of the share to receive
notices of or to attend or vote at general meetings of the Company or,
save as aforesaid, to exercise in respect of the share any of the
rights or privileges of a Shareholder until he or his nominee shall
have become registered as the holder thereof. The Board may at any time
give notice requiring such person to elect either to be registered
himself or to transfer the share and, if the notice is not complied
with within sixty (60) days, the Board may thereafter withhold payment
of all dividends and other moneys payable in respect of the shares
until the requirements of the notice have been complied with.
12
{PAGE}
39. Subject to any directions of the Board from time to time in force, the
Registrar may exercise the powers and discretions of the Board under
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