TABLE
OF CONTENTS
Interpretation
1.
Definitions
Shares
2. Power
to Issue Shares
3. Power of the Company to Purchase its Shares
4. Rights Attaching to Shares
5. Calls on Shares
6. Prohibition on Financial Assistance
7. Forfeiture of Shares
8. Share Certificates
9. Fractional Shares Registration of Shares
10. Register of Members
11. Registered Owner Absolute Owner
12. Transfer of Registered Shares
13. Transmission of Registered Shares Alteration of Share
Capital
14. Power to Alter Capital
15. Variation of Rights Attaching to Shares Dividends
and Capitalisation
16. Dividends
17. Power to Set Aside Profits
18. Method of Payment
19. Capitalisation Meetings of Members
20. Annual General Meetings
21. Special General Meetings
22. Requisitioned General Meetings
23. Notice
24. Giving Notice
25. Postponement or Cancellation of General
Meeting
26. Attendance
and Security at General Meetings
27. Quorum at General Meetings
28. Chairman to Preside
29. Voting on Resolutions
30. Power to Demand Vote on Poll
31. Voting by Joint Holders of Shares
32. Instrument of Proxy
33. Representation of Corporate Member
34. Adjournment of General Meeting
35. Written Resolutions
36. Directors' Attendance at
General
Meetings
Directors and Officers
37. Election of Directors
38. Classes of Directors
39. Term of Office of Directors
40. Alternate Directors
41. Removal of Directors
42. Vacancy in the Office of Director
43. Remuneration of Directors
44. Defect in Appointment of Director
45. Directors to Manage Business
46. Powers of the Board of Directors
47. Register of Directors and Officers
48. Officers
49. Appointment of Officers
50. Duties of Officers
51. Remuneration of Officers
52. Conflicts of Interest
53. Indemnification and Exculpation of Directors and Officers
Meetings
of the Board of Directors
54.
Board Meetings
55. Notice of Board Meetings
56. Participation in Meetings by Telephone
57. Quorum at Board Meetings
58. Board to Continue in Event of Vacancy
59. Chairman to Preside
60. Written Resolutions
61. Validity of Prior Acts of the Board
Corporate
Records
62.
Minutes
63. Place Where Corporate Records Kept
64. Form and Use of Seal
Accounts
65. Books of Account
66. Financial Year End Audits
67. Annual
Audit
68. Appointment of Auditors
69. Remuneration of Auditors
70. Duties of Auditors
71. Access to Records
72. Financial Statements
73. Distribution of Auditors Report
74. Vacancy in the Office of Auditor
Business
Combinations
75. Business Combinations
Voluntary
Winding-Up and Dissolution
76. Winding-Up
Changes
to Constitution
77. Changes to Bye-laws
78. Discontinuance
>INTERPRETATION
1. Definitions
1.1
In these Bye-laws, the following words and expressions
shall, where not inconsistent with the context, have the
following meanings, respectively:
Act
: the Companies Act 1981 as amended from time to time;
Alternate
Director: an alternate director appointed in accordance
with these Bye-laws;
Auditor: cludes an individual or partnership;
Board: the board of directors appointed or elected pursuant
to these Bye-laws and acting by resolution in accordance
with the Act and these Bye-laws or the directors present
at a meeting of directors at which there is a quorum;
Company: the company for which these Bye-laws are approved
and confirmed;
Director: a director of the Company and shall include
an Alternate Director;
Group: the Company and every company and other entity
which is for the time being controlled by or under common
control with the Company (for these purposes, "control"
means the power to direct management or policies of the
person in question, whether by means of an ownership interest
or otherwise);
Member: the person registered in the Register of Members
as the holder of shares in the Company and, when two or
more persons are so registered as joint holders of shares,
means the person whose name stands first in the Register
of Members as one of such joint holders or all of such
persons, as the context so requires;
notice
written notice as further provided in these Bye-laws unless
otherwise specifically stated;
Officer:
any person appointed by the Board to hold an office in
the Company;
Register
of Directors and Officers: the register of directors and
officers referred to in these Bye-laws;
Register
of Members: the register of members referred to in these
Bye-laws;
Registrar
: DnB NOR Bank ASA, acting through its Registrar’s
Department (“Verdipapirservice”);
Resident
Representative: any person appointed to act as resident
representative and includes any deputy or assistant resident
representative;
Secretary:
the person appointed to perform any or all of the duties
of secretary of the Company and includes any deputy or
assistant secretary and any person appointed by the Board
to perform any of the duties of the Secretary; and
VPS
the Norwegian Central Securities Depository (“Verdipapirsentralen”).
1.2 In these Bye-laws, where not inconsistent with the context:
(a)
words denoting the plural number include the singular
number and vice versa;
(b) words denoting the masculine gender include the feminine
and neuter genders;
(c) words importing persons include companies, associations
or bodies of persons whether corporate or not;
(d) the words:
(i)
"may" shall be construed as permissive; and
(ii) "shall" shall be construed as imperative;
and
(e)
unless otherwise provided herein, words or expressions
defined in the Act shall bear the same meaning in these
Bye-laws.
1.3 In these Bye-laws expressions referring to writing
or its cognates shall, unless the contrary intention appears,
include facsimile, printing, lithography, photography,
electronic mail and other modes of representing words
in visible form.
1.4 Headings used in these Bye-laws are for convenience only
and are not to be used or relied upon in the construction
hereof.
>SHARES
2.
Power to Issue Shares
2.1 Subject to these Bye-laws and to any resolution
of the Members to the contrary, and without prejudice
to any special rights previously conferred on the holders
of any existing shares or class of shares, the Board shall
have the power to issue any unissued shares of the Company
on such terms and conditions as it may determine and any
shares or class of shares may be issued with such preferred,
deferred or other special rights or such restrictions,
whether in regard to dividend, voting, return of capital,
or otherwise as the Company may by resolution of the Members
prescribe.
2.2 Subject to the provisions of the Act, any preference shares
may be issued or converted into shares that (at a determinable
date or at the option of the Company or the holder) are
liable to be redeemed on such terms and in such manner
as may be determined by the Board (before the issue or
conversion).
3.
Power of the Company to Purchase its Shares
The Company may purchase its own shares in accordance
with the provisions of the Act on such terms as the Board
shall think fit. The Board may exercise all the powers
of the Company to purchase all or any part of its own
shares in accordance with the Act.
4.
Rights Attaching to
Shares
4.1 Subject to any resolution of the Members to the
contrary (and without prejudice to any special rights
conferred thereby on the holders of any other shares or
class of shares), the share capital of the Company shall
be divided into shares of a single class the holders of
which shall, subject to the provisions of these Bye-laws:
(a)
be entitled to one vote per share;
(b) be entitled to such dividends as the Board may from
time to time declare;
(c) in the event of a winding-up or dissolution of the
Company, whether voluntary or involuntary or for the purpose
of a reorganisation or otherwise or upon any distribution
of capital, be entitled to the surplus assets of the Company;
and
(d) generally be entitled to enjoy all of the rights attaching
to shares.
4.2 At the discretion of the Board, whether
or not in connection with the issuance and sale of any
shares or other securities of the Company, the Company
may issue securities, contracts, warrants or other instruments
evidencing any shares, option rights, securities having
conversion or option rights, or obligations on such terms,
conditions and other provisions as are fixed by the Board,
including, without limiting the generality of this authority,
conditions that preclude or limit any person or persons
owning or offering to acquire a specified number or percentage
of the issued common shares, other shares, option rights,
securities having conversion or option rights, or obligations
of the Company or transferee of the person or persons
from exercising, converting, transferring or receiving
the shares, option rights, securities having conversion
or option rights, or obligations.
5. Calls on Shares
5.1 The
Board may make such calls as it thinks fit upon the Members
in respect of any monies (whether in respect of nominal
value or premium) unpaid on the shares allotted to or
held by such Members (and not made payable at fixed times
by the terms and conditions of issue) and, if a call is
not paid on or before the day appointed for payment thereof,
the Member may at the discretion of the Board be liable
to pay the Company interest on the amount of such call
at such rate as the Board may determine, from the date
when such call was payable up to the actual date of payment.
The Board may differentiate between the holders as to
the amount of calls to be paid and the times of payment
of such calls.
5.2 Any sum which by the terms of allotment of
a share becomes payable upon issue or at any fixed date,
whether on account of the nominal value of the share or
by way of premium, shall for all 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,
costs, charges and expenses, forfeiture or otherwise shall
apply as if such sum had become payable by virtue of a
call duly made and notified.
5.3 The joint holders of a share shall be jointly and
severally liable to pay all calls in respect thereof.
5.4 The Company may accept from any Member the
whole or a part of the amount remaining unpaid on any
shares held by him, although no part of that amount has
been called up.
6. Prohibition on Financial Assistance The Company
shall not give, whether directly or indirectly, whether
by means of loan, guarantee, provision of security or
otherwise, any financial assistance for the purpose of
the acquisition or proposed acquisition by any person
of any shares in the Company, but nothing in this Bye-law
shall prohibit transactions permitted under the Act.
7.
Forfeiture of Shares
7.1 If any Member fails to pay, on the day appointed for payment
thereof, any call in respect of any share allotted to
or held by such Member, the Board may, at any time thereafter
during such time as the call remains unpaid, direct the
Secretary to forward such Member a notice in writing in
the form, or as near thereto as circumstances admit, of
the following:
Notice
of Liability to Forfeiture for Non-Payment of Call Trefoil
Limited (the "Company") You have failed to pay
the call of [amount of call] made on the [ ] day of [
], 200[ ], in respect of the [number] share(s) [number
in figures] standing in your name in the Register of Members
of the Company, on the [ ] day of [ ], 200[ ], the day
appointed for payment of such call. You are hereby notified
that unless you pay such call together with interest thereon
at the rate of [ ] per annum computed from the said [
] day of [ ], 200[ ] at the registered office of the Company
the share(s)will be liable to be forfeited. Dated this
[ ] day of [ ], 200[ ]
[Signature
of Secretary] By Order of the Board
7.2
If the requirements of such notice are not complied with,
any such share may at any time thereafter before the payment
of such call and the interest due in respect thereof be
forfeited by a resolution of the Board to that effect,
and such share shall thereupon become the property of
the Company and may be disposed of as the Board shall
determine.
7.3
A Member whose share or shares have been forfeited as
aforesaid shall, notwithstanding such forfeiture, be liable
to pay to the Company all calls owing on such share or
shares at the time of the forfeiture and all interest
due thereon.
7.4
The Board may accept the surrender of any shares which
it is in a position to forfeit on such terms and conditions
as may be agreed. Subject to those terms and conditions,
a surrendered share shall be treated as if it had been
forfeited.
8.
Share Certificates
8.1
Every Member shall be entitled to a certificate under
the seal of the Company (or a facsimile thereof) specifying
the number and, where appropriate, the class of shares
held by such Member and whether the same are fully paid
up and, if not, specifying the amount paid on such shares.
The Board may by resolution determine, either generally
or in a particular case, that any or all signatures on
certificates may be printed thereon or affixed by mechanical
means.
8.2
The Company shall be under no obligation to complete and
deliver a share certificate unless specifically called
upon to do so by the person to whom the shares have been
allotted.
8.3
If any share certificate shall be proved to the satisfaction
of the Board to have been worn out, lost, mislaid, or
destroyed the Board may cause a new certificate to be
issued and request an indemnity for the lost certificate
if it sees fit.
9.
Fractional Shares
The
Company may issue its shares in fractional denominations
and deal with such fractions to the same extent as its
whole shares and shares in fractional denominations shall
have in proportion to the respective fractions represented
thereby all of the rights of whole shares including (but
without limiting the generality of the foregoing) the
right to vote, to receive dividends and distributions
and to participate in a winding-up.
REGISTRATION
OF SHARES
10.
Register of Members
10.1
The Board shall cause to be kept in one or more books
a Register of Members and shall enter therein the particulars
required by the Act.
10.2
The Register of Members shall be open to inspection at
the registered office of the Company on every business
day, subject to such reasonable restrictions as the Board
may impose, so that not less than two hours in each business
day be allowed for inspection. The Register of Members
may, after notice has been given in accordance with the
Act, be closed for any time or times not exceeding in
the whole thirty days in each year.
11.
Registered Holder Absolute Owner
The Company shall be entitled to treat the registered
holder of any share as the absolute owner thereof and
accordingly shall not be bound to recognise any equitable
claim or other claim to, or interest in, such share on
the part of any other person.
12.
Transfer of Registered Shares
12.1
An instrument of transfer shall be in writing in the form
of the following, or as near thereto as circumstances
admit, or in such other form as the Board may accept:
Transfer of a Share or Shares Trefoil Limited (the "Company")
FOR VALUE RECEIVED………………..[amount],
I, [name of transferor] hereby sell, assign and transfer
unto [transferee] of [address], [number] of shares of
the Company. DATED this [ ] day of [ ], 200[ ] Signed
by: In the presence of: Transferor Witness Transferee
Witness
12.2
Such instrument of transfer shall be signed by or on behalf
of the transferor and transferee, provided that, in the
case of a fully paid share, the Board may accept the instrument
signed by or on behalf of the transferor alone. The transferor
shall be deemed to remain the holder of such share until
the same has been transferred to the transferee in the
Register of Members.
12.3
The Board may refuse to recognise any instrument of transfer
unless it is accompanied by the certificate in respect
of the shares to which it relates and by such other evidence
as the Board may reasonably require to show the right
of the transferor to make the transfer.
12.4
The joint holders of any share may transfer such share
to one or more of such joint holders, and the surviving
holder or holders of any share previously held by them
jointly with a deceased Member may transfer any such share
to the executors or administrators of such deceased Member.
12.5 The Board may in its absolute discretion and without
assigning any reason therefor refuse to register the transfer
of a share which is not fully paid. The Board shall refuse
to register a transfer unless all applicable consents,
authorisations and permissions of any governmental body
or agency in Bermuda have been obtained. If the Board
refuses to register a transfer of any share the Secretary
shall, within three months after the date on which the
transfer was lodged with the Company, send to the transferor
and transferee notice of the refusal.
12.6
The Board may refuse to register the transfer of any share,
and may direct the Registrar to decline (and the Registrar
shall decline if so requested) to register the transfer
of any interest in a share held through the VPS, where
such transfer would, in the opinion of the Board, be likely
to result in:
(i) 50% or more of the aggregate issued and outstanding
share capital of the Company, or shares of the Company
to which are attached 50% or more of the votes attached
to all issued and outstanding shares of the Company, being
held or owned directly or indirectly by individuals or
legal persons resident for tax purposes in Norway or,
alternatively, such shares being effectively connected
to a Norwegian business activity, or the Company being
deemed a Controlled Foreign Company (“CFC”)
pursuant to Norwegian tax legislation; or
(ii) the Company becoming subject to the CFC tax rules
of any other jurisdiction.
12.7
At any time that the Company’s shares are traded
or listed on an appointed stock exchange, shares may be
transferred without a written instrument if transferred
by an appointed agent or otherwise in accordance with
the Act.
13.
Transmission of Registered Shares
13.1
In the case of the death of a Member, the survivor or
survivors where the deceased Member was a joint holder,
and the legal personal representatives of the deceased
Member where the deceased Member was a sole holder, shall
be the only persons recognised by the Company as having
any title to the deceased Member's interest in the shares.
Nothing herein contained shall release the estate of a
deceased joint holder from any liability in respect of
any share which had been jointly held by such deceased
Member with other persons. Subject to the provisions of
the Act, for the purpose of this Bye-law, legal personal
representative means the executor or administrator of
a deceased Member or such other person as the Board may,
in its absolute discretion, decide as being properly authorised
to deal with the shares of a deceased Member.
13.2
Any person becoming entitled to a share in consequence
of the death or bankruptcy of any Member may be registered
as a Member upon such evidence as the Board may deem sufficient
or may elect to nominate some person to be registered
as a transferee of such share, and in such case the person
becoming entitled shall execute in favour of such nominee
an instrument of transfer in writing in the form, or as
near thereto as circumstances admit, of the following:
Transfer
by a Person Becoming Entitled on Death/Bankruptcy of a
Member Trefoil Limited (the "Company") I/We,
having become entitled in consequence of the [death/bankruptcy]
of [name and address of deceased/bankrupt Member] to [number]
share(s) standing in the Register of Members of the Company
in the name of the said [name of deceased/bankrupt Member]
instead of being registered myself/ourselves, elect to
have [name of transferee] (the "Transferee")
registered as a transferee of such share(s) and I/we do
hereby accordingly transfer the said share(s) to the Transferee
to hold the same unto the Transferee, his or her executors,
administrators and assigns, subject to the conditions
on which the same were held at the time of the execution
hereof; and the Transferee does hereby agree to take the
said share(s) subject to the same conditions.
DATED
this [ ] day of [ ], 200[ ]
Signed
by: ....................In the presence of:
Transferor.....................
Witness
Transferee....................
Witness
13.3
On the presentation of the foregoing materials to the
Board, accompanied by such evidence as the Board may require
to prove the title of the transferor, the transferee shall
be registered as a Member. Notwithstanding the foregoing,
the Board shall, in any case, have the same right to decline
or suspend registration as it would have had in the case
of a transfer of the share by that Member before such
Member's death or bankruptcy, as the case may be.
13.4
Where two or more persons are registered as joint holders
of a share or shares, then in the event of the death of
any joint holder or holders the remaining joint holder
or holders shall be absolutely entitled to the said share
or shares and the Company shall recognise no claim in
respect of the estate of any joint holder except in the
case of the last survivor of such joint holders.
ALTERATION
OF SHARE CAPITAL
14.
Power to Alter Capital
14.1
The Company may if authorised by resolution of the Members
increase, divide, consolidate, subdivide, change the currency
denomination of, diminish or otherwise alter or reduce
its share capital in any manner permitted by the Act.
14.2
Where, on any alteration or reduction of share capital,
fractions of shares or some other difficulty would arise,
the Board may deal with or resolve the same in such manner
as it thinks fit.
15.
Variation of Rights Attaching to Shares
If,
at any time, the share capital is divided into different
classes of shares, the rights attached to any class (unless
otherwise provided by the terms of issue of the shares
of that class) may, whether or not the Company is being
wound-up, be varied with the consent in writing of the
holders of three-fourths of the issued shares of that
class or with the sanction of a resolution passed by a
majority of the votes cast at a separate general meeting
of the holders of the shares of the class at which meeting
the necessary quorum shall be two persons at least holding
or representing by proxy one-third of the issued shares
of the class. The rights conferred upon the holders of
the shares of any class issued with preferred or other
rights shall not, unless otherwise expressly provided
by the terms of issue of the shares of that class, be
deemed to be varied by the creation or issue of further
shares ranking pari passu therewith.
DIVIDENDS
AND CAPITALISATION
16.
Dividends
16.1
The Board may, subject to these Bye-laws and in accordance
with the Act, declare a dividend to be paid to the Members,
in proportion to the number of shares held by them, and
such dividend may be paid in cash or wholly or partly
in specie in which case the Board may fix the value for
distribution in specie of any assets. No unpaid dividend
shall bear interest as against the Company.
16.2
The Board may fix any date as the record date for determining
the Members entitled to receive any dividend.
16.3
The Company may pay dividends in proportion to the amount
paid up on each share where a larger amount is paid up
on some shares than on others.
16.4
The Board may declare and make such other distributions
(in cash or in specie) to the Members as may be lawfully
made out of the assets of the Company. No unpaid distribution
shall bear interest as against the Company.
17.
Power to Set Aside Profits
The
Board may, before declaring a dividend, set aside out
of the surplus or profits of the Company, such sum as
it thinks proper as a reserve to be used to meet contingencies
or for equalising dividends or for any other purpose.
18.
Method of Payment
18.1
Any dividend or other monies payable in respect of a share
may be paid by cheque or warrant sent through the post
directed to the address of the Member in the Register
of Members (in the case of joint Members, the senior joint
holder, seniority being determined by the order in which
the names stand in the Register of Members), or by direct
transfer to such bank account as such Member may direct.
Every such cheque shall be made payable to the order of
the person to whom it is sent or to such persons as the
Member may direct, and payment of the cheque or warrant
shall be a good discharge to the Company. Every such cheque
or warrant shall be sent at the risk of the person entitled
to the money represented thereby. If two or more persons
are registered as joint holders of any shares any one
can give an effectual receipt for any dividend paid in
respect of such shares.
18.2
The Board may deduct from the dividends or distributions
payable to any Member all monies due from such Member
to the Company on account of calls or otherwise.
18.3
Any dividend and or other monies payable in respect of
a share which has remained unclaimed for 6 years from
the date when it became due for payment shall, if the
Board so resolves, be forfeited and cease to remain owing
by the Company. The payment of any unclaimed dividend
or other moneys payable in respect of a share may (but
need not) be paid by the Company into an account separate
from the Company's own account. Such payment shall not
constitute the Company a trustee in respect thereof.
18.4
The Company shall be entitled to cease sending dividend
cheques and warrants by post or otherwise to a Member
if those instruments have been returned undelivered to,
or left uncashed by, that Member on at least two consecutive
occasions, or, following one such occasion, reasonable
enquiries have failed to establish the Member's new address.
The entitlement conferred on the Company by this Bye-law
18.4 in respect of any Member shall cease if the Member
claims a dividend or cashes a dividend cheque or warrant.
19.
Capitalisation
19.1
The Board may resolve to capitalise any sum for the time
being standing to the credit of any of the Company's share
premium or other reserve accounts or to the credit of
the profit and loss account or otherwise available for
distribution by applying such sum in paying up unissued
shares to be allotted as fully paid bonus shares pro-rata
(except in connection with the conversion of shares of
one class to shares of another class) to the Members.
19.2
The Board may resolve to capitalise any sum for the time
being standing to the credit of a reserve account or sums
otherwise available for dividend or distribution by applying
such amounts in paying up in full partly paid or nil paid
shares of those Members who would have been entitled to
such sums if they were distributed by way of dividend
or distribution.
MEETINGS OF MEMBERS
20.
Annual General Meetings The annual general meeting of
the Company shall be held in each year (other than the
year of incorporation) at such time and place as the President
or the Chairman or the Board shall appoint.
21.
Special General Meetings The President or the Chairman
or the Board may convene a special general meeting of
the Company whenever in their judgment such a meeting
is necessary.
22.
Requisitioned General Meetings The Board shall, on the
requisition of Members holding at the date of the deposit
of the requisition not less than one-tenth of such of
the paid-up share capital of the Company as at the date
of the deposit carries the right to vote at general meetings
of the Company, forthwith proceed to convene a special
general meeting of the Company and the provisions of the
Act shall apply.
23.
Notice
23.1
At least 14 days' notice of an annual general meeting
shall be given to each Member entitled to attend and vote
thereat, stating the date, place and time at which the
meeting is to be held, that the election of Directors
will take place thereat, and as far as practicable, the
other business to be conducted at the meeting.
23.2
At least 14 days' notice of a special general meeting
shall be given to each Member entitled to attend and vote
thereat, stating the date, time, place and the general
nature of the business to be considered at the meeting.
23.3
The Board may fix any date as the record date for determining
the Members entitled to receive notice of and to vote
at any general meeting of the Company.
23.4
A general meeting of the Company shall, notwithstanding
that it is called on shorter notice than that specified
in these Bye-laws, be deemed to have been properly called
if it is so agreed by
(i) all the Members entitled to attend and vote thereat
in the case of an annual general meeting; and
(ii) by a majority in number of the Members having the
right to attend and vote at the meeting, being a majority
together holding not less than 95% in nominal value of
the shares giving a right to attend and vote thereat in
the case of a special general meeting.
23.5
The accidental omission to give notice of a general meeting
to, or the non-receipt of a notice of a general meeting
by, any person entitled to receive notice shall not invalidate
the proceedings at that meeting.
24.
Giving Notice
24.1
A notice may be given by the Company to any Member either
by delivering it to such Member in person or by sending
it to such Member's address in the Register of Members
or to such other address given for the purpose. For the
purposes of this Bye-law, a notice may be sent by letter
mail, courier service, cable, telex, telecopier, facsimile,
electronic mail or other mode of representing words in
a legible form.
24.2
Any notice required to be given to a Member shall, with
respect to any shares held jointly by two or more persons,
be given to whichever of such persons is named first in
the Register of Members and notice so given shall be sufficient
notice to all the holders of such shares.
24.3
Save as provided by Bye-law 24.4, any notice shall be
deemed to have been served at the time when the same would
be delivered in the ordinary course of transmission and,
in proving such service, it shall be sufficient to prove
that the notice was properly addressed and prepaid, if
posted, at the time when it was posted, delivered to the
courier or to the cable company or transmitted by telex,
facsimile, electronic mail, or such other method as the
case may be.
24.4
Mail notice shall be deemed to have been served seven
days after the date on which it is deposited, with postage
prepaid, in the mail of any member state of the European
Union, the United States, or Bermuda.
24.5
The Company shall be under no obligation to send a notice
or other document to the address shown for any particular
Member in the Register of Members if the Board considers
that the legal or practical problems under the laws of,
or the requirements of any regulatory body or stock exchange
in, the territory in which that address is situated are
such that it is necessary or expedient not to send the
notice or document concerned to such Member at such address
and may require a Member with such an address to provide
the Company with an alternative acceptable address for
delivery of notices by the Company.
25.
Postponement or Cancellation of General Meeting
The
Chairman or the President may, and the Secretary on instruction
from the Chairman or the President shall, postpone or
cancel any general meeting called in accordance with the
provisions of these Bye-laws (other than a meeting requisitioned
under these Bye-laws) provided that notice of postponement
or cancellation is given to each Member before the time
for such meeting. Fresh notice of the date, time and place
for the postponed or cancelled meeting shall be given
to the Members in accordance with the provisions of these
Bye-laws.
>MEETINGS
26.
Attendance and Security at General Meetings
26.1
Members may participate in any general meeting by means
of such telephone, electronic or other communication facilities
as permit all persons participating in the meeting to
communicate with each other simultaneously and instantaneously,
and participation in such a meeting shall constitute presence
in person at such meeting.
26.2
The Board may, and at any general meeting, the chairman
of such meeting may make any arrangement and impose any
requirement or restriction it or he considers appropriate
to ensure the security of a general meeting including,
without limitation, requirements for evidence of identity
to be produced by those attending the meeting, the searching
of their personal property and the restriction of items
that may be taken into the meeting place. The Board and,
at any general meeting, the chairman of such meeting are
entitled to refuse entry to a person who refuses to comply
with any such arrangements, requirements or restrictions.
27.
Quorum at General Meetings
27.1
At any general meeting of the Company two or more persons
present in person throughout the meeting and representing
in person or by proxy in excess of 30% of the total issued
voting shares in the Company shall form a quorum for the
transaction of business, provided that if the Company
shall at any time have only one Member, one Member present
in person or by proxy
Trefoil Limited Page 17
shall form a quorum for the transaction of business at
any general meeting of the Company held during such time.
27.2
If within half an hour from the time appointed for the
meeting a quorum is not present, then, in the case of
a meeting convened on a requisition, the meeting shall
be deemed cancelled and, in any other case, the meeting
shall stand adjourned to the same day one week later,
at the same time and place or to such other day, time
or place as the Secretary may determine. If the meeting
shall be adjourned to the same day one week later or the
Secretary shall determine that the meeting is adjourned
to a specific date, time and place, it is not necessary
to give notice of the adjourned meeting other than by
announcement at the meeting being adjourned. If the Secretary
shall determine that the meeting be adjourned to an unspecified
date, time or place, fresh notice of the resumption of
the meeting shall be given to each Member entitled to
attend and vote thereat in accordance with the provisions
of these Bye-laws.
28.
Chairman to Preside Unless otherwise agreed by a majority
of those attending and entitled to vote thereat, the Chairman,
if there be one, and if not the President, shall act as
chairman at all meetings of the Members at which such
person is present. In their absence, the Deputy Chairman
or Vice President, if present, shall act as chairman and
in the absence of all of them a chairman shall be appointed
or elected by those present at the meeting and entitled
to vote.
29.
Voting on Resolutions
29.1
Subject to the provisions of the Act and these Bye-laws,
any question proposed for the consideration of the Members
at any general meeting shall be decided by the affirmative
votes of a majority of the votes cast in accordance with
the provisions of these Bye-laws and in the case of an
equality of votes the resolution shall fail.
29.2
No Member shall be entitled to vote at a general meeting
unless such Member has paid all the calls on all shares
held by such Member.
29.3
At any general meeting a resolution put to the vote of
the meeting shall, in the first instance, be voted upon
by a show of hands and, subject to any rights or restrictions
for the time being lawfully attached to any class of shares
and subject to the provisions of these Bye-laws, every
Member present in person and every person holding a valid
proxy at such meeting shall be entitled to one vote and
shall cast such vote by raising his or her hand.
29.4
At any general meeting if an amendment shall be proposed
to any resolution under consideration and the chairman
of the meeting shall rule on whether the proposed amendment
is out of order, the proceedings on the substantive resolution
shall not be invalidated by any error in such ruling.
29.5
At any general meeting a declaration by the chairman of
the meeting that a question proposed for consideration
has, on a show of hands, been carried, or carried unanimously,
or by a particular majority, or lost, and an entry to
that effect in a book containing the minutes of the proceedings
of the Company shall, subject to the provisions of these
Bye-laws, be conclusive evidence of that fact.
30.
Power to Demand a Vote on a Poll
30.1
Notwithstanding the foregoing, a poll may be demanded
by any of the following persons: (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 and holding
between them not less than one-tenth of the total voting
rights of all the Members having the right to vote at
such meeting; or (d) any Member or Members present in
person or represented by proxy holding shares in the Company
conferring the right to vote at such meeting, being shares
on which an aggregate sum has been paid up equal to not
less than one-tenth of the total sum paid up on all such
shares conferring such right.
30.2
Where a poll is demanded, subject to any rights or restrictions
for the time being lawfully attached to any class of shares,
every person present at such meeting shall have one vote
for each share of which such person is the holder or for
which such person holds a proxy and such vote shall be
counted by ballot as described herein, or in the case
of a general meeting at which one or more Members are
present by telephone, in such manner as the chairman of
the meeting may direct and the result of such poll shall
be deemed to be the resolution of the meeting at which
the poll was demanded and shall replace any previous resolution
upon the same matter which has been the subject of a show
of hands. A person entitled to more than one vote need
not use all his votes or cast all the votes he uses in
the same way.
30.3
A poll demanded for the purpose of electing a chairman
of the meeting or on a question of adjournment shall be
taken forthwith and a poll demanded on any other question
shall be taken in such manner and at such time and place
at such meeting as the chairman (or acting chairman) of
the meeting may direct and any business other than that
upon which a poll has been demanded may be proceeded with
pending the taking of the poll.
30.4
Where a vote is taken by poll, each person present and
entitled to vote shall be furnished with a ballot paper
on which such person shall record his vote in such manner
as shall be determined at the meeting having regard to
the nature of the question on which the vote is taken,
and each ballot paper shall be signed or initialed or
otherwise marked so as to identify the voter and the registered
holder in the case of a proxy. At the conclusion of the
poll, the ballot papers shall be examined and counted
by a committee of not less than two Members or proxy holders
appointed by the chairman for the purpose and the result
of the poll shall be declared by the chairman.
31.
Voting by Joint Holders of Shares
In
the case of joint holders, the vote of the senior who
tenders a vote (whether in person or by proxy) shall be
accepted to the exclusion of the votes of the other joint
holders, and for this purpose seniority shall be determined
by the order in which the names stand in the Register
of Members.
32.
Instrument of Proxy
32.1
A Member may appoint a proxy by (a) an instrument appointing
a proxy in writing in substantially the following form
or such other form as the Board may determine from time
to time: Proxy Trefoil Limited (the "Company")
I/We, [insert names here], being a Member of the Company
with [number] shares, HEREBY APPOINT [name] of [address]
or failing him, [name] of [address] to be my/our proxy
to vote for me/us at the meeting of the Members to be
held on the [ ] day of [ ], 200[ ] and at any adjournment
thereof. (Any restrictions on voting to be inserted here.)
Signed
this [ ] day of [ ], 200[ ]
Member(s)
or
(b) such telephonic, electronic or other means as may
be approved by the Board from time to time.
32.2
The appointment of a proxy must be received by the Company
at the registered office or at such other place or in
such manner as is specified in the notice convening the
meeting or in any instrument of proxy sent out by the
Company in relation to the meeting at which the person
named in the appointment proposes to vote, and an appointment
of proxy which is not received in the manner so permitted
shall be invalid.
32.3
A Member who is the holder of two or more shares may appoint
more than one proxy to represent him and vote on his behalf
and/or need not vote all of his shares in the same way.
32.4
The decision of the chairman of any general meeting as
to the validity of any appointment of a proxy shall be
final.
33.
Representation of Corporate Member
33.1
A corporation which is a Member may, by written instrument,
authorise such person or persons as it thinks fit to act
as its representative at any meeting of the Members and
any person so authorised shall be entitled to exercise
the same powers on behalf of the corporation which such
person represents as that corporation could exercise if
it were an individual Member, and that Member shall be
deemed to be present in person at any such meeting attended
by its authorised representative or representatives.
33.2 Notwithstanding the foregoing, the chairman of the
meeting may accept such assurances as he thinks fit as
to the right of any person to attend and vote at general
meetings on behalf of a corporation which is a Member.
34.
Adjournment of General Meeting
34.1
The chairman of any general meeting at which a quorum
is present may with the consent of Members holding a majority
of the voting rights of those Members present in person
or by proxy (and shall if so directed by Members holding
a majority of the voting rights of those Members present
in person or by proxy), adjourn the meeting.
34.2
In addition, the chairman may adjourn the meeting to another
time and place without such consent or direction if it
appears to him that: (a) it is likely to be impracticable
to hold or continue that meeting because of the number
of Members wishing to attend who are not present; or (b)
the unruly conduct of persons attending the meeting prevents,
or is likely to prevent, the orderly continuation of the
business of the meeting; or (c) an adjournment is otherwise
necessary so that the business of the meeting may be properly
conducted.
34.3
Unless the meeting is adjourned to a specific date, place
and time announced at the meeting being adjourned, fresh
notice of the date, place and time for the resumption
of the adjourned meeting shall be given to each Member
entitled to attend and vote thereat in accordance with
the provisions of these Bye-laws.
35.
Written Resolutions
35.1
Subject to the following, anything which may be done by
resolution of the Company in general meeting or by resolution
of a meeting of any class of the Members may, without
a meeting and without any previous notice being required,
be done by resolution in writing signed by, or in the
case of a Member that is a corporation whether or not
a company within the meaning of the Act, on behalf of,
all the Members who at the date of the resolution would
be entitled to attend the meeting and vote on the resolution.
35.2
A resolution in writing may be signed by, or in the case
of a Member that is a corporation whether or not a company
within the meaning of the Act, on behalf of, all the Members,
or all the Members of the relevant class thereof, in as
many counterparts as may be necessary.
35.3
A resolution in writing made in accordance with this Bye-law
is as valid as if it had been passed by the Company in
general meeting or by a meeting of the relevant class
of Members, as the case may be, and any reference in any
Bye-law to a meeting at which a resolution is passed or
to Members voting in favour of a resolution shall be construed
accordingly.
35.4
A resolution in writing made in accordance with this Bye-law
shall constitute minutes for the purposes of the Act.
35.5
This Bye-law shall not apply to: (a) a resolution passed
to remove an auditor from office before the expiration
of his term of office; or (b) a resolution passed for
the purpose of removing a Director before the expiration
of his term of office.
35.6
For the purposes of this Bye-law, the date of the resolution
is the date when the resolution is signed by, or in the
case of a Member that is a corporation whether or not
a company within the meaning of the Act, on behalf of,
the last Member to sign and any reference in any Bye-law
to the date of passing of a resolution is, in relation
to a resolution made in accordance with this Bye-law,
a reference to such date. 36. Directors Attendance at
General Meetings The Directors of the Company shall be
entitled to receive notice of, attend and be heard at
any general meeting.
>General
MEETING
DIRECTORS
AND OFFICERS
37. Election of Directors
37.1
The Board shall consist of such number of Directors being
not less than 4 Directors and not more than such maximum
number of Directors, not exceeding 6 Directors, as the
Members may from time to time determine.
37.2
Only persons who are proposed or nominated in accordance
with this Bye-law shall be eligible for election as Directors.
Any Member or the Board may propose any person for election
as a Director. Where any person, other than a Director
retiring at the meeting or a person proposed for re-election
or election as a Director by the Board, is to be proposed
for election as a Director, notice must be given to the
Company of the intention to propose him and of his willingness
to serve as a Director. Where a Director is to be elected
at an annual general meeting, that notice must be given
not less than 7 days prior to the annual general meeting.
Where a Director is to be elected at a special general
meeting, that notice must be given not later than 7 days
prior to the special general meeting.
37.3
Where the number of persons validly proposed for re-election
or election as a Director is greater than the number of
Directors to be elected, the persons receiving the most
votes (up to the number of Directors to be elected) shall
be elected as Directors, and an absolute majority of the
votes cast shall not be a prerequisite to the election
of such Directors. 37.4 At any general meeting the Members
may authorise the Board to fill any vacancy in their number
left unfilled at a general meeting.
38.
Classes of Directors
The
Directors shall be divided into two classes designated
Class I and Class II. Each class of Directors shall consist,
as nearly as possible, of one half of the total number
of Directors constituting the entire Board.
39.
Term of Office of Directors
At
the date of adoption of these Bye-laws the Directors shall
be classified as Class I Directors or Class II Directors,
with the Class I Directors serving for a two year term
of office and the Class II Directors serving for a one
year term of office. At each succeeding annual general
meeting, successors to the class of Directors whose term
expires at that annual general meeting shall be elected
for a two year term. If
the number of Directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain
the number of Directors in each class as nearly equal
as possible, and any Director of any class elected to
fill a vacancy shall hold office for a term that shall
coincide with the remaining term of the other Directors
of that class, but in no case shall a decrease in the
number of Directors shorten the term of any Director then
in office. A Director shall hold office until the annual
general meeting for the year in which his term expires,
subject to his office being vacated pursuant to Bye-law
43.
40.
Alternate Directors
40.1
At any general meeting of the Company, the Members may
elect a person or persons to act as a Director in the
alternative to any one or more Directors of the Company
or may authorise the Board to appoint such Alternate Directors.
40.2
Unless the Members otherwise resolve, any Director may
appoint a person or persons to act as a Director in the
alternative to himself by notice in writing deposited
with the Secretary. Any person so elected or appointed
shall have all the rights and powers of the Director or
Directors for whom such person is appointed in the alternative
provided that such person shall not be counted more than
once in determining whether or not a quorum is present.
40.3
An Alternate Director shall be entitled to receive notice
of all meetings of the Board and to attend and vote at
any such meeting at which a Director for whom such Alternate
Director was appointed in the alternative is not personally
present and generally to perform at such meeting all the
functions of such Director for whom such Alternate Director
was appointed.
40.4
An Alternate Director shall cease to be such if the Director
for whom such Alternate Director was appointed ceases
for any reason to be a Director but may be re-appointed
by the Board as an alternate to the person appointed to
fill the vacancy in accordance with these Bye-laws.
41.
Removal of Directors
41.1
Subject to any provision to the contrary in these Bye-laws,
the Members entitled to vote for the election of Directors
may, at any special general meeting convened and held
in accordance with these Bye-laws, remove a Director,
provided that the notice of any such meeting convened
for the purpose of removing a Director shall contain a
statement of the intention so to do and be served on such
Director not less than 14 days before the meeting and
at such meeting the Director shall be entitled to be heard
on the motion for such Director's removal.
41.2
If a Director is removed from the Board under the provisions
of this Bye-law the Members may fill the vacancy at the
meeting at which such Director is removed. In the absence
of such election or appointment, the Board may fill the
vacancy.
42.
Vacancy in the Office of Director
42.1
The office of Director shall be vacated if the Director:
(a) is removed from office pursuant to these Bye-laws
or is prohibited from being a Director by law;
(b) is or becomes bankrupt, or makes any arrangement or
composition with his creditors generally;
(c) is or becomes of unsound mind or dies; or
(d) resigns his office by notice in writing to the Company.
42.2
The Members in general meeting or the Board shall have
the power to appoint any person as a Director to fill
a vacancy on the Board occurring as a result of the death,
disability, disqualification or resignation of any Director
or as a result of an increase in the size of the Board
and to appoint an Alternate Director to any Director so
appointed.
43.
Remuneration of Directors
The
remuneration (if any) of the Directors shall be determined
by the Company in general meeting and shall be deemed
to accrue from day to day. The Directors may also be paid
all travel, hotel and other expenses properly incurred
by them in attending and returning from the meetings of
the Board, any committee appointed by the Board, general
meetings of the Company, or in connection with the business
of the Company or their duties as Directors generally.
44.
Defect in Appointment of Director
All acts done in good faith by the Board or by a committee
of the Board 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 Director
or person acting as 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.
45.
Directors to Manage Business
45.1
The business of the Company shall be managed and conducted
by the Board. In managing the business of the Company,
the Board may exercise all such powers of the Company
as are not, by statute or by these Bye-laws, required
to be exercised by the Company in general meeting subject,
nevertheless, to these Bye-laws and the provisions of
any statute.
45.2 Subject to these Bye-laws, the Board may delegate
to any company, firm, person, or body of persons any power
of the Board (including the power to sub-delegate).
46.
Powers of the Board of Directors
The
Board may:
(a) appoint, suspend, or remove any manager, secretary,
clerk, agent or employee of the Company and may fix
their remuneration and determine their duties;
(b) exercise all the powers of the Company to borrow
money and to mortgage or charge its undertaking, property
and uncalled capital, or any part thereof, and may issue
debentures, debenture stock and other securities whether
outright or as security for any debt, liability or obligation
of the Company or any third party;
(c) appoint one or more Directors to the office of managing
director or chief executive officer of the Company,
who shall, subject to the control of the Board, supervise
and administer all of the general business and affairs
of the Company; (d) appoint a person to act as manager
of the Company's day-to-day business and may entrust
to and confer upon such manager such powers and duties
as it deems appropriate for the transaction or conduct
of such business;
(e) by power of attorney, appoint any company, firm,
person or body of persons, whether nominated directly
or indirectly by the Board, to be an attorney of the
Company for such purposes and with such powers, authorities
and discretions (not exceeding those vested in or exercisable
by the Board) and for such period and subject to such
conditions as it may think fit and any such power of
attorney may contain such provisions for the protection
and convenience of persons dealing with any such attorney
as the Board may think fit and may also authorise any
such attorney to sub-delegate all or any of the powers,
authorities and discretions so vested in the attorney.
Such attorney may, if so authorised under the seal of
the Company, execute any deed or instrument under such
attorney's personal seal with the same effect as the
affixation of the seal of the Company;
(f) procure that the Company pays all expenses incurred
in promoting and incorporating the Company;
(g) delegate any of its powers (including the power
to sub-delegate) to a committee appointed by the Board
which may consist partly or entirely of non-Directors,
provided that every such committee shall conform to
such directions as the Board shall impose on them and
provided further that the meetings and proceedings of
any such committee shall be governed by the provisions
of these Bye-laws regulating the meetings and proceedings
of the Board, so far as the same are applicable and
are not superceded by directions imposed by the Board;
(h) delegate any of its powers (including the power
to sub-delegate) to any person on such terms and in
such manner as the Board may see fit;
(i) present any petition and make any application in
connection with the liquidation or reorganisation of
the Company;
(j) in connection with the issue of any share, pay such
commission and brokerage as may be permitted by law;
(k) authorise any company, firm, person or body of persons
to act on behalf of the Company for any specific purpose
and in connection therewith to execute any agreement,
document or instrument on behalf of the Company; and
(l) take all necessary or desirable actions within its
control to ensure that the Company is not deemed resident
in Norway or deemed to be a CFC pursuant to Norwegian
tax legislation.
47.
Register of Directors and Officers
The
Board shall cause to be kept in one or more books at the
registered office of the Company a Register of Directors
and Officers and shall enter therein the particulars required
by the Act.
48.
Officers
The
Officers shall consist of a President and a Vice President
or a Chairman and a Deputy Chairman, a Secretary and such
additional Officers as the Board may determine all of
whom shall be deemed to be Officers for the purposes of
these Bye-laws.
49.
Appointment of Officers
The
Board shall appoint a President and Vice President or
a Chairman and Deputy Chairman who shall be Directors.
The Secretary (and additional Officers, if any) shall
be appointed by the Board from time to time.
50. Duties of Officers
The Officers shall have such powers and perform such duties
in the management, business and affairs of the Company
as may be delegated to them by the Board from time to
time.
51.
Remuneration of Officers The Officers shall receive such
remuneration as the Board may determine.
52.
Conflicts of Interest
52.1 Any Director, or any Director's firm, partner or
any company with whom any Director is associated, may
act in any capacity for, be employed by or render services
to the Company and such Director or such Director's firm,
partner or company shall be entitled to remuneration as
if such Director were not a Director. Nothing herein contained
shall authorise a Director or Director's firm, partner
or company to act as Auditor to the Company.
52.2 A Director who is directly or indirectly interested
in a contract or proposed contract or arrangement with
the Company shall declare the nature of such interest
as required by the Act.
52.3
Save as provided herein, a Director shall not vote, be
counted in the quorum or act as chairman at a meeting
in respect of
(A)
his appointment to hold any office or place of profit
with the Company or any body corporate or other entity
in which the Company owns an equity interest or
(B) the approval of the terms of any such appointment
or of any contract or arrangement in which he is materially
interested (otherwise than by virtue of his interest
in shares, debentures or other securities of the Company),
provided that, a Director shall be entitled to vote
(and be counted in the quorum and act as chairman) in
respect of any resolution concerning any of the following
matters, namely:
(i) the giving of any security, guarantee or indemnity
to him in respect of money lent or obligations incurred
by him for the benefit of the Company; or
(ii) any proposal concerning any other body corporate
in which he is interested directly or indirectly, whether
as an officer, Shareholder, creditor or otherwise, provided
that he is not the holder of or beneficially interested
(other than as a bare custodian or trustee in respect
of shares in which he has no beneficial interest) in
more than 1% of any class of the issued share capital
of such body corporate (or of any third body corporate
through which his interest is derived) or of the voting
rights attached to all of the issued shares of the relevant
body corporate (any such interest being deemed for the
purpose of this Bye-law to be a material interest in
all circumstances); and in the case of an Alternate
Director, an interest of a Director for whom he is acting
as alternate shall be treated as an interest of such
Alternate Director in addition to any interest which
the Alternate Director may otherwise have.
52.4
If any question shall arise at any meeting as to the materiality
of a Director’s interest or as to the entitlement
of any Director to vote, and such question is not resolved
by such Director voluntarily agreeing to abstain from
voting and not be counted in the quorum of such meeting,
such question shall be referred to the chairman of the
meeting (except in the event the Director is also the
chairman of the meeting, in which case the question shall
be referred to the other Directors present at the meeting)
and his (or their, as the case may be) ruling in relation
to such
Director shall be final and conclusive, except in a case
where the nature or extent of the interest of the Director
concerned has not been fully disclosed.
53.
Indemnification and Exculpation of Directors and Officers
53.1
The Directors, Secretary and other Officers (such term
to include any person appointed to any committee by the
Board) for the time being acting in relation to any of
the affairs of the Company, any subsidiary thereof and
the liquidator or trustees (if any) for the time being
acting in relation to any of the affairs of the Company
or any subsidiary thereof and every one of them, and their
heirs, executors and administrators, shall be indemnified
and secured harmless out of the assets of the Company
from and against all actions, costs, charges, losses,
damages and expenses which they or any of them, their
heirs, executors or administrators, shall or may incur
or sustain by or by reason of any act done, concurred
in or omitted in or about the execution of their duty,
or supposed duty, or in their respective offices or trusts,
and none of them shall be answerable for the acts, receipts,
neglects or defaults of the others of them or for joining
in any receipts for the sake of conformity, or for any
bankers or other persons with whom any moneys or effects
belonging to the Company shall or may be lodged or deposited
for safe custody, or for insufficiency or deficiency of
any security upon which any moneys of or belonging to
the Company shall be placed out on or invested, or for
any other loss, misfortune or damage which may happen
in the execution of their respective offices or trusts,
or in relation thereto, PROVIDED THAT this indemnity shall
not extend to any matter in respect of any fraud or dishonesty
which may attach to any of the said persons. Each Member
agrees to waive any claim or right of action such Member
might have, whether individually or by or in the right
of the Company, against any Director or Officer on account
of any action taken by such Director or Officer, or the
failure of such Director or Officer to take any action
in the performance of his duties with or for the Company
or any subsidiary thereof, PROVIDED THAT such waiver shall
not extend to any matter in respect of any fraud or dishonesty
which may attach to such Director or Officer.
53.2
The Company may purchase and maintain insurance for the
benefit of any Director or Officer of the Company against
any liability incurred by him under the Act in his capacity
as a Director or Officer of the Company or indemnifying
such Director or Officer in respect of any loss arising
or liability attaching to him by virtue of any rule of
law in respect of any negligence, default, breach of duty
or breach of trust of which the Director or Officer may
be guilty in relation to the Company or any subsidiary
thereof.
>MEETINGS
OF THE BOARD OF DIRECTORS
54.
Board Meetings
The
Board may meet for the transaction of business, adjourn
and otherwise regulate its meetings as it sees fit. Subject
to the provisions of these Bye-laws, a resolution put
to the vote at a meeting of the Board shall be carried
by the affirmative votes of a majority of the votes cast
and in the case of an equality of votes the resolution
shall fail.
55.
Notice of Board Meetings
A
Director may, and the Secretary on the requisition of
a Director shall, at any time summon a meeting of the
Board. Notice of a meeting of the Board shall be deemed
to be duly given to a Director if it is given to such
Director verbally (in person or by telephone) or otherwise
communicated or sent to such Director by post, cable,
telex, telecopier, facsimile, electronic mail or other
mode of representing words in a legible form at such Director's
last known address or any other address given by such
Director to the Company for this purpose.
56.
Participation in Meetings by Telephone
Directors
may participate in any meeting of the Board by means of
such telephone, electronic or other communication facilities
as permit all persons participating in the meeting to
communicate with each other simultaneously and instantaneously,
and participation in such a meeting shall constitute presence
in person at such meeting.
57.
Quorum at Board Meetings
The
quorum necessary for the transaction of business at a
meeting of the Board shall be in excess of 50% of the
Directors then in office.
58.
Board to Continue in the Event of Vacancy
The Board may act notwithstanding any vacancy in its number
but, if and so long as its number is reduced below the
number fixed by these Bye-laws as the quorum necessary
for the transaction of business at meetings of the Board,
the continuing Directors or Director may act for the purpose
of (i) summoning a general meeting of the Company; or
(ii) preserving the assets of the Company.
59.
Chairman to Preside
Unless
otherwise agreed by a majority of the Directors attending,
the Chairman, if there be one, and if not, the President
shall act as chairman at all meetings of the Board at
which such person is present. In their absence the Deputy
Chairman or Vice President, if present, shall act as chairman
and in the absence of all of them a chairman shall be
appointed or elected by the Directors present at the meeting.
60.
Written Resolutions
A
resolution signed by all the Directors, which may be in
counterparts, shall be as valid as if it had been passed
at a meeting of the Board duly called and constituted,
such resolution to be effective on the date on which the
last Director signs the resolution. For the purposes of
this Bye-law only, "Director" shall not include
an Alternate Director.
61.
Validity of Prior Acts of the Board No regulation or alteration
to these Bye-laws made by the Company in general meeting
shall invalidate any prior act of the Board which would
have been valid if that regulation or alteration had not
been made.
>CORPORATE
RECORDS
62.
Minutes
The
Board shall cause minutes to be duly entered in books
provided for the purpose:
(a)
of all elections and appointments of Officers;
(b) of the names of the Directors present at each meeting
of the Board and of any committee appointed by the Board;
and
(c) of all resolutions and proceedings of general meetings
of the Members, meetings of the Board, and meetings
of committees appointed by the Board.
63.
Place Where Corporate Records Kept Minutes prepared in
accordance with the Act and these Bye-laws shall be kept
by the Secretary at the registered office of the Company.
64.
Form and Use of Seal
64.1
The seal of the Company shall be in such form as the Board
may determine. The Board may adopt one or more duplicate
seals for use in or outside Bermuda.
64.2
The seal of the Company shall not be affixed to any instrument
except attested by the signature of a Director and the
Secretary or any two Directors, or any person appointed
by the Board for that purpose, provided that any Director,
Officer or Resident Representative, may affix the seal
of the Company attested by such Director, Officer or Resident
Representative's signature to any authenticated copies
of these Bye-laws, the incorporating documents of the
Company, the minutes of any meetings or any other documents
required to be authenticated by such Director, Officer
or Resident Representative.
>ACCOUNTS
65.
Books of Account
65.1
The Board shall cause to be kept proper records of account
with respect to all transactions of the Company and in
particular with respect to:
(a)
all sums of money received and expended by the Company
and the matters in respect of which the receipt and expenditure
relates; (b) all sales and purchases of goods by the Company;
and
(c) all assets and liabilities of the Company.
65.2 Such records of account shall be kept at the registered
office of the Company, or subject to the provisions of
the Act, at such other place as the Board thinks fit and
shall be available for inspection by the Directors during
normal business hours.
66.
Financial Year End The financial year end of the Company
may be determined by resolution of the Board and failing
such resolution shall be 31st December in each year.
>AUDITS
67.
Annual Audit Subject to any rights to waive laying of
accounts or appointment of an Auditor pursuant to the
Act, the accounts of the Company shall be audited at least
once in every year. 68. Appointment of Auditors
68.1
Subject to the provisions of the Act, 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 Auditor of the accounts
of the Company.
68.2
The Auditor may be a Member but no Director, Officer or
employee of the Company shall, during his continuance
in office, be eligible to act as an Auditor of the Company.
69.
Remuneration of Auditors The remuneration of the Auditor
shall be fixed by the Company in general meeting or in
such manner as the Members may determine.
70.
Duties of Auditors
70.1
The financial statements provided for by these Bye-laws
shall be audited by the Auditor in accordance with generally
accepted auditing standards. The Auditor shall make a
written report thereon in accordance with generally accepted
auditing standards.
70.2 The generally accepted auditing standards referred
to in this Bye-law may be those of a country or jurisdiction
other than Bermuda or such other generally accepted auditing
standards as may be provided for in the Act. If so, the
financial statements and the report of the Auditor shall
identify the generally accepted auditing standards used.
71.
Access to Records The Auditor shall at all reasonable
times have access to all books kept by the Company and
to all accounts and vouchers relating thereto, and the
Auditor may call on the Directors or Officers of theCompany
for any information in their possession relating to the
books or affairs of the Company.
72.
Financial Statements Subject to any rights to waive laying
of accounts pursuant to the provisions of the Act, financial
statements as required by the Act shall be laid before
the Members in general meeting.
73.
Distribution of Auditors report The report of the Auditor
shall be submitted to the Members in general meeting.
74.
Vacancy in the Office of Auditor If the office of Auditor
becomes vacant by the resignation or death or the Auditor,
or by the Auditor becoming incapable of acting by reason
of illness or other disability at a time when the Auditor's
services are required, the vacancy thereby created shall
be filled in accordance with the Act. BUSINESS COMBINATIONS
>75.
BUSINESS Combinations
75.1 (a) Any Business
Combination with any Interested Shareholder within a period
of three years following the time of the transaction in
which the person become an Interested Shareholder must
be approved by the Board and authorised at an annual or
special general meeting, by the affirmative vote of at
least 66 and 2/3% of the issued and outstanding voting
shares of the Company that are not owned by the Interested
Shareholder unless:
(i) prior to the time that the person became an Interested
Shareholder, the Board approved either the Business Combination
or the transaction which resulted in the person becoming
an Interested Shareholder; or
(ii) upon consummation of the transaction which resulted
in the person becoming an Interested Shareholder, the
Interested Shareholder owned at least 85% of the number
of issued and outstanding voting shares of the Company
at the time the transaction commenced, excluding for the
purposes of determining the number of shares issued and
outstanding those shares owned
(i) by persons who are directors and also officers and
(ii) employee share plans in which employee participants
do not have the right to determine whether shares held
subject to the plan will be tendered in a tender or exchange
offer.
(b) The restrictions
contained in this Bye-law 75.1 shall not apply if: *
(i) a Member becomes an Interested Shareholder inadvertently
and (i) as soon as practicable divests itself of ownership
of sufficient shares so that the Member ceases to be an
Interested Shareholder; and
(ii) would not, at any time within the three-year period
immediately prior to a Business Combination between the
Company and such Member, have been an Interested Shareholder
but for the inadvertent acquisition of ownership; or
(ii) the Business Combination is proposed prior to the
consummation or abandonment of, and subsequent to the
earlier of the public announcement or the notice required
hereunder of, a proposed transaction which
(i) constitutes one of the transactions described in the
following sentence;
(ii) is with or by a person who either was not an Interested
Shareholder during the previous three years or who became
an Interested Shareholder with the approval of the Board;
and (iii) is approved or not opposed by a majority of
the members of the Board then in office who were Directors
prior to any person becoming an Interested Shareholder
during the previous three years or were recommended for
election or elected to succeed such Directors by resolution
of the Board approved by a majority of such Directors.
The proposed transactions referred to in the preceding
sentence are limited to:
(a) a merger, amalgamation or consolidation of the Company
(except an amalgamation in respect of which, pursuant
to the Act, no vote of the shareholders of the Company
is required);
(b) a sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
transactions), whether as part of a dissolution or otherwise,
of assets of the Company or of any entity directly or
indirectly wholly-owned or majority-owned by the Company
(other than to the Company or any entity directly or indirectly
wholly-owned by the Company) having an aggregate market
value equal to 50% or more of either the aggregate market
value of all of the assets of the Company determined on
a consolidated basis or the aggregate market value of
all the issued and outstanding shares of the Company;
or
(c) a proposed tender or exchange offer for 50% or more
of the issued and outstanding voting shares of the Company.
The Company shall give not less than 20 days notice to
all Interested Shareholders prior to the consummation
of any of the transactions described in subparagraphs
(a) or (b) of the second sentence of this paragraph
(ii). (c) For the purpose of this Bye-law 75 only, the
term:
(i) "affiliate" means a person that directly,
or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with,
another person;
(ii) "associate," when used to indicate a relationship
with any person, means:
(i) any company, partnership, unincorporated association
or other entity of which such
person is a director, officer or partner or is, directly
or indirectly, the owner of 20% or more of any class of
voting shares;
(ii) any trust or other estate in which such person has
at least a 20% beneficial interest or as to which such
person serves as trustee or in a similar fiduciary capacity;
and (iii) any relative or spouse of such person, or any
relative of such spouse, who has the same residence as
such person;
(iii) "Business Combination," when used in reference
to the Company and any Interested Shareholder of the Company,
means:
(a) any merger, amalgamation or consolidation of the Company
or any entity directly or indirectly wholly-owned or majority-owned
by the Company, wherever incorporated, with
(A) the Interested Shareholder or any of its affiliates,
or
(B) with any other company, partnership, unincorporated
association or other entity if the merger, amalgamation
or consolidation is caused by the Interested Shareholder;
(b) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
transactions), except proportionately as a shareholder
of the Company, to or with the Interested Shareholder,
whether as part of a dissolution or otherwise, of assets
of the Company or of any entity directly or indirectly
wholly-owned or majority-owned by the Company which assets
have an aggregate market value equal to 10% or more of
either the aggregate market value of all the assets of
the Company determined on a consolidated basis or the
aggregate market value of all the issued and outstanding
shares of the Company;
(c) any transaction which results in the issuance or transfer
by the Company or by any entity directly or indirectly
wholly-owned or majority-owned by the Company of any shares
of the Company, or any share of such entity, to the Interested
Shareholder, except: (A) pursuant to the exercise, exchange
or conversion of securities exercisable for, exchangeable
for or convertible
into shares of the Company, or shares of any such entity,
which securities were issued and outstanding prior to
the time that the Interested Shareholder became such;
(B) pursuant to a dividend or distribution paid or made,
or the exercise, exchange or conversion of securities
exercisable for, exchangeable for or convertible into
shares of the Company, or shares of any such entity, which
security is distributed, pro rata to all holders of a
class or series of shares subsequent to the time the Interested
Shareholder became such; (C) pursuant to an exchange offer
by the Company to purchase shares made on the same terms
to all holders of such shares; or (D) any issuance or
transfer of shares by the Company; provided however, that
in no case under items (B)-(D) of this subparagraph shall
there be an increase in the Interested Shareholder's proportionate
share of the any class or series of shares; (d) any transaction
involving the Company or any entity directly or indirectly
wholly-owned or majority-owned by the Company which has
the effect, directly or indirectly, of increasing the
proportionate share of any class or series of shares,
or securities convertible into any class or series of
shares of the Company, or shares of any such entity, or
securities convertible into such shares, which is owned
by the Interested Shareholder, except as a result of immaterial
changes due to fractional share adjustments or as a result
of any repurchase or redemption of any shares not caused,
directly or indirectly, by the Interested Shareholder;
or (e) any receipt by the Interested Shareholder of the
benefit, directly or indirectly (except proportionately
as a shareholder of the Company), of any loans, advances,
guarantees, pledges or other financial benefits (other
than those expressly permitted in subparagraphs (a)-(d)
of this paragraph) provided by or through the Company
or any entity directly or indirectly wholly-owned or majority-owned
by the Company;
(iv) "control," including the terms "controlling,"
"controlled by" and "under common control
with," means the possession, directly or indirectly,
of the power to direct or cause the direction of the management
and policies of a person, whether through the ownership
of voting shares, by contract or otherwise. A person who
is the owner of 20% or more of the issued and outstanding
voting shares of any company, partnership, unincorporated
association or other entity shall be presumed to have
control of such entity, in the absence of proof by a preponderance
of the evidence to the contrary; provided that notwithstanding
the foregoing, such presumption of control shall not apply
where such person holds voting shares, in good faith and
not for the purpose of circumventing this provision, as
an agent, bank, broker, nominee, custodian or trustee
for one or more owners who do not individually or as a
group have control of such entity; (v) "Interested
Shareholder" means any person (other than the Company
and any entity directly or indirectly wholly-owned or
majority-owned by the Company) that (i) is the owner of
15% or more of the issued and outstanding voting shares
of the Company, (ii) is an affiliate or associate of the
Company and was the owner of 15% or more of the issued
and outstanding voting shares of the Company at any time
within the three-year period immediately prior to the
date on which it is sought to be determined whether such
person is an Interested Shareholder or (iii) is an affiliate
or associate of any person listed in (i) or (ii) above;
provided, however, that the term "Interested Shareholder"
shall not include any person whose ownership of shares
in excess of the 15% limitation set forth herein is the
result of action taken solely by the Company unless such
person referred to in this proviso acquires additional
voting shares of the Company otherwise than as a result
of further corporate action not caused, directly or indirectly,
by such person. For the purpose of determining whether
a person is an Interested Shareholder, the voting shares
of the Company deemed to be issued and outstanding shall
include voting shares deemed to be owned by the person
through application of paragraph (8) below, but shall
not include any other unissued shares which may be issuable
pursuant to any agreement, arrangement or understanding,
or upon exercise of conversion rights, warrants or options,
or otherwise;
(vi) "person" means any individual, company,
partnership, unincorporated association or other entity;
(vii) "voting shares" means, with respect to
any company, shares of any class or series entitled to
vote generally in the election of directors and, with
respect to any entity that is not a company, any equity
interest entitled to vote generally in the election of
the governing body of such entity; (viii) "owner,"
including the terms "own" and "owned,"
when used with respect to any shares, means a person that
individually or with or through any of its affiliates
or associates: (a) beneficially owns such shares, directly
or indirectly; or (b) has (A) the right to acquire such
shares (whether such right is exercisable immediately
or only after the passage of time) pursuant to any agreement,
arrangement or understanding, or upon the exercise of
conversion rights, exchange rights, warrants or options,
or otherwise; provided, however, that a person shall not
be deemed the owner of shares tendered pursuant to a tender
or exchange offer made by such person or any of such person's
affiliates or associates until such tendered shares are
accepted for purchase or exchange; or (B) the right to
vote such shares pursuant to any agreement, arrangement
or understanding; provided, however, that a person shall
not be deemed the owner of any shares because of such
person's right to vote such shares if the agreement, arrangement
or understanding to vote such shares arises solely from
a revocable proxy or consent given in response to a proxy
or consent solicitation made to 10 or more persons; or
(c) has any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting (except voting
pursuant to a revocable proxy or
consent as described in item (B) of subparagraph (b) of
this paragraph), or disposing of such shares with any
other person that beneficially owns, or whose affiliates
or associates beneficially own, directly or indirectly,
such shares. 75.2 In respect of any Business Combination
to which the restrictions contained in Bye-law 75.1 do
not apply but which the Act requires to be approved by
the Members, the necessary general meeting quorum and
Members’ approval shall be as set out in Bye-laws
27 and 29 respectively.
>76.
VOLUNTARY WINDING-UP AND DISSOLUTION
76.
Winding-Up If the Company shall be wound up the liquidator
may, with the sanction of a resolution of the Members,
divide amongst the Members in specie or in kind the whole
or any part of the assets of the Company (whether they
shall consist of property of the same kind or not) and
may, for such purpose, set such value as he deems fair
upon any property to be divided as aforesaid and may determine
how such division shall be carried out as between the
Members or different classes of Members. The liquidator
may, with the like sanction, vest the whole or any part
of such assets in the trustees upon such trusts for the
benefit of the Members as the liquidator shall think fit,
but so that no Member shall be compelled to accept any
shares or other securities or assets whereon there is
any liability.
>CHANGES
TO CONSTITUTION
77.
Changes to Bye-laws
77.1
Subject to Bye-law
77.2,
no Bye-law shall be rescinded, altered or amended and
no new Bye-law shall be made until the same has been approved
by a resolution of the Board and by a resolution of the
Members. 77.2 Bye-laws 75, and 77 shall not be rescinded,
altered or amended and no new Bye-law shall be made which
would have the effect of rescinding, altering or amending
the provisions of such Bye-laws, until the same has been
approved by a resolution of the Board including the affirmative
vote of not less than 66% per cent of the Directors then
in office and by a resolution of the Members including
the affirmative vote of not less than 66% per cent of
the votes attaching to all shares in issue.
78.
Discontinuance
The
Board may exercise all the powers of the Company to discontinue
the Company to a jurisdiction outside Bermuda pursuant
to the Act.
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