Exhibit 3.9
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COMPANIES LAW, CAP. 113
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COMPANY LIMITED BY SHARES
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MEMORANDUM OF ASSOCIATION
OF
CONIFER SHIPPING COMPANY LIMITED
1. The name of the Company is:
CONIFER SHIPPING COMPANY LIMITED
2. The registered office of the Company will be situated in Cyprus.
3. The objects for which the Company is established are :
(1) To bareboat charter vessels of any kind and to register the same at any
ship registry in accordance with any relevant law and to purchase, take
in exchange, hire, manage, charter, build, or otherwise acquire, hold
or equip ships or vessels of any kind with or without their equipment
machinery, furniture and receptacles, or shares or interests in such
ships or vessels, as well as shares or other documents of companies
possessed of such ships or vessels, and to employ the same in the
conveyance of passengers, troops, goods and produce of all kinds,
including live stock, oil or other liquids, weapons and munitions of
war and generally any kind of articles, between any ports or places, in
Cyprus or elsewhere, and to acquire any postal subsidies, and to
maintain, repair, improve, alter, let out on hire, mortgage or
otherwise deal with, sell or dispose of any such ships or vessels,
shares or documents.
(2) To carry on the business of shipowners, carriers by land and sea,
managers, dealers and agents of ships and shipping companies,
shipchandlers, warehousemen, contractors, owners of barges, lighters,
motor boats or other small vessels, forwarding agents, agents of all
kinds, stevedores, shipbrokers, freight contractors, shipowners,
wharfingers, manufacturers and merchants of ice, owners and keepers of
refrigerating stores and spaces and to insure with any company or
person against any loss, damage, risk or liability of any kind which
may affect the Company, its property, its products or the persons or
articles transported by it and its transport means as well as to carry
on the business of insurance agents for any type of insurance business,
including marine insurance.
(3) To borrow money for any purpose jointly and/or severally with others,
to give guarantees and securities of the liabilities and obligations of
others and generally, without limitation, in any possible way and by
any method or means, to grant financial, commercial or other
assistance, aid or support, of any nature, to others; provided that for
the purposes of this paragraph the word " others " shall mean and
include only any one or more shipowning or shipmanagement or other
companies, which belong to the same group of companies as the Company,
or are controlled by the same shareholders as those of the Company or
own a vessel managed or operated by the same managers or operators as a
vessel of the Company.
(4) To participate in the management, supervision and control of any
business or work of any company or enterprise and for this purpose to
appoint and remunerate any Directors, Managers, accountants, experts,
agents or other representatives and to amalgamate with any other
company or enterprise which either in part or as a whole has objects
similar to those of the Company.
(5) To acquire either in part or as a whole the property or the obligations
of any person or persons, legal or physical, and of any description, so
long as the Company deems them capable of promoting its business and
contribute to its success.
(6) To enter into contracts, agreements and arrangements with other
companies, person or persons, legal or physical and of whatever
description, on lawful consideration and to carry on on their behalf
any kind of business connected with the objects of the Company.
(7) To enter into partnerships or any other arrangements for participation
in profits or interests, and into co-operation, joint ventures, mutual
concessions or otherwise with other persons or person, legal or
physical, or with other enterprises carrying on or engaged in business
or commercial transactions capable of being directly or indirectly
beneficial to the Company.
(8) To invest and manage the capital and monies of the Company in such
shares or other investments, mortgages or pledges as it would be deemed
fit or in such a way as the Directors may from time to time decide, as
well as to subscribe for, take, buy or otherwise acquire and possess
shares or other interests in other companies or debentures or other
securities in same.
(9) To enter into any arrangements with any Government or Authority,
Municipal, local or otherwise, which might be considered as conducive
to the attainment of the objects of the Company or of any of them, to
obtain by such arrangement concessions, rights or privileges, which, as
a whole or each one separately the Company would wish to obtain and use
and to comply with such arrangements, rights, privileges and
concessions.
(10) To secure the registration or recognition of the Company in any country
or place and to comply with any necessary or advantageous conditions
for the purpose of ensuring the functioning of the Company in such
country or place and to establish local representatives or offices
therein for the carrying on of its business.
(11) To appoint and engage employees, servants, workers, personnel, agents
or other persons in connection with the business of the Company.
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(12) To remunerate any person or firm rendering services to the Company or
working in the Company either by payment of money or by the issue of
shares as fully or partly paid up or by granting a dividend or interest
in the profits of the Company.
(13) To lend or advance money to such persons and under such conditions as
it would be deemed advisable and, especially, to its members, to
customers and persons dealing with the Company.
(14) To provide indemnities or guarantees to third parties including
mortgaging and charging of the property of the Company by way of
security of a loan and/or guarantee to third parties. The provision of
such indemnity or guarantee constitutes a self-evident and conclusive
fact that the same was made in the interests and/or for the promotion
of the objects of the Company.
(15) To borrow, seek and secure the payment of money in respect of the
business of the Company and for this purpose to mortgage and burden the
business and the whole or any part of its immovable and movable
property, present or future, in any way the Company would deem fit,
including the issue, at nominal value or increased value or value below
the nominal one, of debentures or stock, perpetual or otherwise,
charged upon all or any of the property of the Company (both present or
future), including its uncalled capital and, further or additionally,
to secure any securities of the Company by trust or other security and
to purchase, redeem or otherwise pay off any such securities.
(16) To draw, accept, indorse, discount and execute promissory notes, bills
of exchange and other instruments payable to order or to the bearer.
(17) To purchase, take under lease or exchange, let or otherwise acquire,
use and possess or mortgage, sell, gift or otherwise alienate any
property or any interests, lands, buildings, easements, rights,
privileges, concessions, machineries, patents, installations, goods or
any other movable or immovable property of any kind.
(18) To erect, construct, commence construction, extend, convert and
maintain any buildings works and machinery necessary or suitable for
the objects of the Company.
(19) To register, acquire, possess, use, sell or otherwise dispose business
names, trade and industrial marks, patents, invention rights,
copyrights and other similar rights and privileges.
(20) To advertise either by itself or through special, governmental or
private bodies, the businesses of the Company or any of them, in any
way the Company would deem fit, including the advertisement through the
press or radio, through placards, films, circulars, exhibitions,
publication of books or magazines, competitions, prize awards or
rewards and through any other lawful means.
(21) To sell or otherwise dispose of part or the whole of the business or
the property of the Company for such consideration as the Company would
deem fit.
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(22) To distribute in specie amongst the members of the Company part or the
whole of the property or the business of the Company and at any time,
as well as in case of its dissolution.
(23) To establish and maintain or procure the establishment and maintenance
of any contributory or non contributory pension provident or
superannuation funds for the benefit of, and give or procure the giving
of donations, gratuities, pensions, allowances or emoluments to any
persons who are or were at any time in the employment or service of the
Company, or of any company which is a subsidiary of the Company or is
allied to or associated with the Company or any subsidiary company, or
who are or were at any time Directors or officers of the Company or of
any such other company as aforesaid, and the Wives, widows, husbands,
widowers, families and dependents of any such persons, and also to
establish and subsidise and subscribe to any institutions,
associations, clubs or funds which to the Company may seem to be for
the benefit of or to advance the interest and well-being of the Company
or of any such other company as aforesaid or of any such persons as
aforesaid and make payments to or towards the insurance of any such
person as aforesaid, and do any of the matters aforesaid either alone
or in conjunction with any such other company as aforesaid.
(24) To participate in or otherwise aid any charitable or philanthropic body
or purpose or other purpose of public benefit.
(25) To pay all expenses related to the formation and registration of the
Company.
(26) To do all or any of the above acts either alone or in conjunction with
others and in various legal capacities, such as principal, mandatory,
agent contractor, trustee or in any other capacity envisaged by the
Law, as well as generally and for every purpose or object to act in any
capacity as above.
(27) To do any act which is conducive to or necessary for the achievement of
the above or of any of the above objects severally.
It is herepy expressly declared that each sub-clause of clause 3 above
shall be construed independently of any other sub-clause thereof and
that none of the objects mentioned in any of the above sub-clauses
shall be deemed to be merely subsidiary to the objects mentioned in any
of the other above sub-clauses.
4. The liability of the members is limited.
5. The share capital of the Company is (pound)1000.- divided into 1000
shares of (pound) 1.- each. The shares in the original or any increased
capital may be divided into several classes, and there may be attached
thereto respectively any preferential rights, privileges, conditions or
restrictions or especially as regards dividends, capital, voting rights
or otherwise.
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COMPANIES LAW, CAP. 113
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COMPANY LIMITED BY SHARES
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ARTICLES OF ASSOCIATION
OF
CONIFER SHIPPING COMPANY LIMITED
1. The regulations contained in Part I of Table "A" in the First Schedule
of the Companies Law, Cap. 113 (which Table is hereinafter called
"Table A") shall apply to this Company, save those which by these
presents are excepted or amended or which are inconsistent with the
other provisions of these Articles. The regulations of Part 1 of "Table
A" No. 11, 24, 53, 58, 60, 77, 79, 88 (a), 89, 90, 91, 92, 98 and 113
shall not apply, but save as above provided and in addition to the
other provisions of Part I of "Table A", the following shall constitute
the Articles of Association of this Company.
2. The Company is a private company and consequently: -
(a) The right to transfer shares is restricted in manner
hereinafter prescribed,
(b) The number of members of the Company (exclusive of persons who
are in the employment of the Company and of persons who having
been formerly in the employment of the Company were while in
such employment and have continued after the determination of
such employment to be members of the Company) is limited to
fifty. Provided that where two or more persons hold one or
more shares in the Company jointly they shall for the purpose
of this Article be treated as a single member,
(c) Any invitation to the public to subscribe for any shares or
debentures of the Company is prohibited.
(d) The Company shall not have power to issue share warrants to
bearer.
3. Any branch or nature of business for which there is either an express
or an implied by the Memorandum of Association of the Company or by
these Articles authorization to be undertaken by the Company may be
undertaken by the Directors at such time or times as they would deem
fit and, furthermore, may remain by the Directors in abeyance,
irrespective of whether such branch or nature of business has actually
started or not if the Directors would deem fit not to start or not to
continue with such branch or nature of business.
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4. The Company shall have a first and paramount lien on every share for
all moneys (whether presently payable or not) called or payable at a
fixed time in respect of that share, and the Company shall also have a
first and paramount lien on all shares standing registered in the name
of a single person for all moneys presently payable by him or his
estate to the Company; but the Directors may at any time declare any
share to be wholly or in part exempt from the provisions of this
Article. The Company's lien, if any, on a share shall extend to all
dividends payable thereon.
5. All additional shares approved to be issued shall be offered to the
members in proportion to the number of shares already held by them and
such offer shall be made by notice fixing the number of shares which
each member is entitled to be allotted and restricting the time in
which the offer if not accepted, shall be deemed as having been
declined and after which time or on receipt of a declaration by the
member to whom such a notice is given that he declines to accept the
shares offered, the Directors may allot or otherwise dispose same to
such persons and under such conditions as they would deem fit.
6. The Directors may, independently of any other provision of the
Articles, but subject to Art. 7 hereinbelow, in their absolute
discretion and without assigning any reason therefor, decline to
register the transfer of any share to any person of whom they do not
approve, whether or not it is a fully paid share, and may also decline
to register the transfer of any share on which the Company has a legal
lien.
7. Notwithstanding any other provision in these Articles, the following
transfers of shares to members of the Company or not and either by
sale, exchange, gift, transmission by law or otherwise are freely
permitted and the Directors shall forthwith approve any such transfer
and shall proceed to the registration of same in the Register of
Members of the Company:-
(a) Transfer to father, mother, spouse, child, grandson or
granddaughter of the transferor (in these Articles called "
members of the family ").
(b) if the member is one or more trustees, transfer to another
trustee or trustees if any previous one or ones were replaced.
(c) Transfer by an individual member to a company controlled
either together or separately by such member and/or by any
members of his family and/or by a company controlled by them
or any of them. For the purposes of this paragraph a company
is deemed to be controlled if the controlling person, physical
or legal, holds therein more than 50% of the votes.
(d) Transfer by a company member to an individual or to another
company holding in the transferor company more then 25% of the
votes.
(e) Transfer by a company member to another company which is a
subsidiary or holding of the transferor company or to another
company controlled by such subsidiary or holding company. For
the purposes of this paragraph the words subsidiary and
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holding company have the usual meaning and the word
"controlled company" means holding in such company more than
50% of the votes.
Provided that the as above provided free transfer of
shares would not be allowed if by such transfer there would
result, directly or indirectly, the transformation of this
Company to a non-exempt one, if it is already an exempt
company or to a public company, except if the Directors would
otherwise resolve unanimously, in which case such transfer
would be freely allowed and without the exercise of the rights
of option hereinbelow provided.
8. No transfer of shares to any member of the Company or not, which is not
provided by these Articles to be freely allowed, may be effected so
long as any member wishes to buy such share at its fair value which
shall be fixed as hereinbelow provided.
9. In order to find out whether any member is willing to purchase a share
at the fair value, the person, whether a member of the Company or not,
proposing to transfer same - hereinafter called "the retiring member" -
shall give notice in writing - hereinafter called "notice of sale" - to
the Company that he desires to transfer the same. Every notice of sale
shall specify the serial number - if any - of the shares, which the
retiring member desires to transfer and shall constitute the Company
the agent of the retiring member for the sale of such shares to any
member of the Company at the fair value. No notice shall be revocable
except with the sanction of the Directors.
10. If the Company shall, within the space of twenty-eight days after being
served with such notice of sale, find a member willing to purchase any
share included in the notice of sale - hereinafter called "the
purchasing member" - and shall give notice thereof to the retiring
member, the retiring member shall be bound, upon payment of the fair
value, to transfer the share to the purchasing member, who is bound to
complete the purchase within seven days from the service of the last
mentioned notice. The Directors, in order to find a purchasing member
shall offer any shares included in a notice of sale to the persons who
are the holders of the remaining shares in the Company in as near a
proportion to the shares in the Company held by them and shall limit
the time within which such offer if not accepted will be deemed as
declined, and the Directors shall then make such arrangements as
regards finding a purchasing member for any shares declined by the
member to whom the shares were offered, within the so fixed time limit,
as the Directors would deem just and reasonable.
11. The fair value of a share is fixed by agreement between the purchasing
and the retiring member and any difference in regard thereto shall be
referred to arbitration of one arbitrator, whose decision shall be
final and, subject to above, the Arbitration Law for the time being in
force shall apply and the auditors of the Company shall appear before
such arbitrator as expert witnesses. If for any reason the award of the
arbitrator is not made within fourteen days from the date of the
appointment of the arbitrator, the arbitration is cancelled and the
auditors of the Company shall fix finally the fair value, as experts
and not as arbitrators.
12. If, in case the retiring member makes default in transferring any
shares which he was bound to transfer as above, the Directors may
authorise another person to proceed with the transfer
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of the shares to the purchasing member and may give valid receipt for
the purchase-money of such shares, register the purchasing member as
holder thereof and issue a certificate in respect of same in his name
and by virtue of which the purchasing member shall become absolutely
entitled to same. The retiring member in such a case shall be bound to
return the certificate of the said shares and upon that shall be
entitled to collect the purchase-money, without interest, and if such
certificate contains any shares which he was not bound to transfer as
above, the Company shall issue to him a certificate for the remaining
shares.
Provided that, till the return of the above certificate, some
shall in any case, be deemed to be cancelled with regard to any share
already transferred to a purchasing member, as above.
13. If the Directors shall not, within the space of twenty-eight days after
being served with a notice of sale, find a purchasing member for all or
any of the shares which are included in such notice and shall not give
notice in manner aforesaid, or if through no fault of the retiring
member the purchase of any shares in respect of which such last
mentioned notice was given is not concluded within the space of
twenty-eight days from the service of such notice, the retiring member
at any time within the next six months shall be free, subject to Art.
6, to sell and transfer the shares contained in the notice of sale or
such of them which were not sold to a purchasing member at any price
and to any person.
14. Notwithstanding any other provisions of the Articles, no share shall be
given by a member as a pledge or as security for a loan, debt or
obligation without the sanction of the Directors, and the Directors
shall decline to register or recognize any such pledge or security
given in contravention of this Article, which pledge or security shall
not be valid towards the Company, save as otherwise provided by law.
15. Each member shall not be entitled to appoint more than one proxy to
attend on the same occasion.
16. All notices and other communications relating to a General Meeting and
which each member is entitled to receive, shall also be given to the
auditors of the Company.
17. No business shall be transacted at any General Meeting unless a quorum
of members is present at the time when the Meeting proceeds to
business. Save as herein otherwise provided, two members present in
person or by proxy shall be a quorum.
18. At any General Meeting a resolution put to the vote of the Meeting
shall be decided on a show of hands unless a poll is (before or on the
declaration of the result of the show of hands) demanded: -
(a) by the chairman, or
(b) by at least one member, present in person or by proxy.
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Unless a poll be so demanded, a declaration by the chairman
that a resolution 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 the book containing the minutes of the proceedings of the
Company shall be conclusive evidence of the fact without proof of the
number or proportion of the votes recorded in favour of or against such
resolution. The demand for a poll may be withdrawn.
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he may fix, and such Alternate Director shall during such period be
entitled to attend and vote in any Meeting of the Director and he shall
generally have and exercise all rights, powers and duties of the
Director appointing him, provided always that the appointor Director
may at any time revoke such appointment and in case of death or
disability of the appointor Director or in case in which the latter
ceases for any reason to be a Director the appointment shall be
terminated ipso facto and shall be of no effect.
If an Alternate Director is already a Director of the Company,
he shall have a separate vote, as Alternate Director and shall be
counted separately for the purposes of constituting a quorum.
26. Any person acting as Alternate Director shall be deemed to be an
officer of the Company and he shall be personally liable to it for his
acts and omissions and his remuneration shall be paid out of the
remuneration of the Director appointing him and shall consist of such
part of such remuneration as it may be agreed between the appointor
Director and his Alternate.
27. (a) The Seal of the Company shall only be used by the
authority of the Directors and every instrument to which the
Seal shall be affixed shall be signed by one Director or
Alternate Director, or by the Secretary.
(b) The Company may have an official seal, in addition to the
aforesaid common seal, which shall be as provided by s. 36 (1)
of the Law and for use as therein provided.
28. Subject to the provisions of the Law, a resolution in writing signed by
all the members for the time being entitled to receive notice of and to
attend and vote at General Meetings - or being corporations by their
duly authorized representatives - shall be as valid and effective as if
the same had been passed at a General Meeting of the Company duly
convened and held.
29. A resolution in writing, signed, or approved by letter, cable,
radiogram or telex by all the Directors, or the Alternate Directors,
shall be as valid and effective for all purposes as if the same had
been passed at a meeting of the Directors duly convened and held and
whenever the same is signed may consist of several papers each of which
shall be signed by one or more of the aforesaid persons.
30. The Directors may at any time require from any person, whose name is
registered in the register of members of the Company, to furnish them
with any information supported - if the Directors so require - by a
statutory Declaration, which they may consider necessary for the
purpose of enabling them to determine whether or not the Company is an
exempt private Company within the meaning of pars. 4 of section 123 of
the Law.
31. Notwithstanding any provision contained in the Articles applicable to
the Company, the meetings of the Directors, as well as the General
Meetings of the Company (ordinary or extraordinary) may be convened and
held either in Cyprus or abroad, in any city or at any place as the
majority of the Directors or the members, as the case may be, may
require in writing.
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32. Except as required by law, no person shall be recognised by the Company
as holding any share upon any trust and the Company shall not be bound
by, or be compelled 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 as
otherwise provided by these Articles or by law or by an order of a
Court of competent jurisdiction) any other rights in respect of any
share except an absolute right to the entirety thereof in the
registered holder.
33. Notwithstanding any provision of Art. 32 above, but always subject to
the provisions of section 112 of the Law, the Company may if it so
desires and if it has been notified in writing thereof, recognise the
existence of a trust on any share although it may not register the same
in the Register of Members of the Company. Such recognition by the
Company is made known to the trustees by letter and is irrevocable as
long as such trust remains in existence, even though trustees or any of
them may be replaced.
34. The Directors may grant retirement pensions or annuities or other
gratuities or allowances, including allowances on death, to any person
or to the widow of or dependants of any person in respect of services
rendered by him to the Company whether as Director or Director in any
executive office or in any other office or employment under the Company
or indirectly as an officer or employee of any subsidiary company of
the Company notwithstanding that he may be or may have been a Director
of the Company and the Company may make payments towards insurances or
trusts for such purposes in respect of such persons and may include
rights in respect of such pensions, annuities and allowances in the
terms of engagement of any such person, without being precluded from
granting such retirement pensions or annuities or other gratuities or
allowances including allowances of death not as a part and
independently of the terms of any engagement but upon the retirement,
resignation or death of any such person as the Board of Directors may
decide.
35. A notice may be given by the Company to any member either personally or
by sending it by post to him or to his registered address or (if he has
no registered address within Cyprus) to the address, if any, within or
out of Cyprus, supplied by him to the Company, for the giving of notice
to him. Where a notice is sent by post, service of the notice shall be
deemed to be effected if contained in an envelope, duly addressed and
duly stamped and posted by double registered letter and shall be deemed
to have been received in the case of a notice of a meeting at the
expiration of 72 hours after posting and in any other case at the time
at which the letter would be delivered in the ordinary course of post.
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