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EXHIBIT 3.1
[SEAL]
BERMUDA
CERTIFICATE OF INCORPORATION
ON CHANGE OF NAME
I HEREBY CERTIFY that in accordance with section 10 of the Companies Act 1981
TYCO HOLDINGS (BERMUDA) NO. 9 LIMITED by resolution and with the approval of the
Registrar of Companies has changed its name and was registered as TYCO CAPITAL
LTD. on the 5TH day of OCTOBER, 2001.
[SEAL] Given under my hand and the Seal of
the REGISTRAR OF COMPANIES
this 9TH day of OCTOBER, 2001.
for Acting Registrar of Companies
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FORM NO. 6 REGISTRATION NO. 27864
[SEAL]
BERMUDA
CERTIFICATE OF INCORPORATION
I hereby in accordance with section 14 of THE COMPANIES ACT 1981 issue this
Certificate of Incorporation and do certify that on the 25TH day of FEBRUARY,
2000
TYCO HOLDINGS (BERMUDA) NO. 9 LIMITED
was registered by me in the Register maintained by me under the provisions of
the said section and that the status of the said company is that of an EXEMPTED
company.
[SEAL] Given under my hand and the Seal of the
REGISTRAR OF COMPANIES this 28TH
day of FEBRUARY, 2000.
for REGISTRAR OF COMPANIES
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FORM NO. 2
[SEAL]
BERMUDA
THE COMPANIES ACT 1981
MEMORANDUM OF ASSOCIATION OF
COMPANY LIMITED BY SHARES
(SECTION 7(1) AND (2))
MEMORANDUM OF ASSOCIATION
OF
TYCO HOLDINGS (BERMUDA) NO. 9 LIMITED
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(hereinafter referred to as "the Company")
1. The liability of the members of the Company is limited to the amount (if
any) for the time being unpaid on the shares respectively held by them.
2. We, the undersigned, namely,
<Table>
<Caption>
NAME ADDRESS BERMUDIAN NATIONALITY NUMBER OF
STATUS SHARES
(YES/NO) SUBSCRIBED
Michael L. Jones
Cedar House, 41 Cedar Avenue
Hamilton HM 12, Bermuda Yes British 1
Ruby L. Rawlins
Cedar House, 41 Cedar Avenue
Hamilton HM 12, Bermuda Yes British 1
Andresa L. Tucker
Cedar House, 41 Cedar Avenue
Hamilton HM 12, Bermuda Yes British 1
Antoinette Simmons
Cedar House, 41 Cedar Avenue
Hamilton HM 12, Bermuda Yes British 1
</Table>
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do hereby respectively agree to take such number of shares of the Company as may
be allotted to us respectively by the provisional directors of the Company, not
exceeding the number of shares for which we have respectively subscribed, and to
satisfy such calls as may be made by the directors, provisional directors or
promoters of the Company in respect of the shares allotted to us respectively.
3. The Company is to be an exempted Company as defined by the Companies Act
1981
4. The Company, with the consent of the Minister of Finance, has power to
hold land situate in Bermuda not exceeding in all, including the following
parcels-
Not Applicable
5. The authorised share capital of the Company is $12,000.00 divided into
12,000 shares of U.S. one dollar each. The minimum subscribed share
capital of the Company is $12,000.00 in United States currency.
6. The objects for which the Company is formed and incorporated are -
See Attached.
7. The Company has the powers set out in the Schedule annexed hereto.
6.
(i) To carry on business as a holding company and to acquire and hold
shares, stocks, debenture stock, bonds, mortgages, obligations and
securities of any kind issued or guaranteed by any company,
corporation or undertaking of whatever nature and wherever
constituted or carrying on business, and shares, stock, debentures,
debenture stock, bonds, obligations and other securities issued or
guaranteed by any government, sovereign ruler, commissioners, trust,
local authority or other public body, whether in Bermuda or
elsewhere, and to vary, transpose, dispose of or otherwise deal with
from time to time as may be considered expedient any of the
Company's investments for the time being;
To acquire any such shares and other securities as are mentioned in
the preceding paragraph by subscription, syndicate participation,
tender, purchase, exchange or otherwise and to subscribe for the
same, either conditionally or otherwise, and to
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guarantee the subscription thereof and to exercise and enforce all
rights and powers conferred by or incident to the ownership thereof;
(iii) To co-ordinate the administration, policies, management,
supervision, control, research, planning, trading and any and all
other activities of, and to act as financial advisers and
consultants to, any company or companies now or hereafter
incorporated or acquired which may be or may become a Group Company
(which expression, in this and the next following paragraph, means a
company, wherever incorporated, which is or becomes a holding
company or a subsidiary of, or affiliated with, the Company within
the meanings respectively assigned to those terms in The Companies
Act 1981) or, with the prior written approval of the Minister of
Finance, to any company or companies now or hereafter incorporated
or acquired with which the Company may be or may become associated;
To provide financing and financial investment, management and
advisory services to any Group Company, which shall include but not
be limited to granting or providing credit and financial
accommodation, lending and making advances with or without interest
to any Group Company and lending to or depositing with any bank
funds or other assets to provide security (by way of mortgage,
charge, pledge, lien or otherwise) for loans or other forms of
financing granted to such Group Company by such bank;
Provided that the Company shall not be deemed to have the power to
act as executor or administrator, or as trustee, except in
connection with the issue of bonds and debentures by the Company or
any Group Company or in connection with a pension scheme for the
benefit of employees or former employees of the Company or a Group
Company or their respective predecessors, or the dependants or
connections of such employees or former employees;
(v) As set forth in paragraphs (b) to (n) and (p) to (u) inclusive of
the Second Schedule to The Companies Act, 1981.
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THE COMPANIES ACT
SECOND SCHEDULE (SECTION 11(2))
Subject to Section 4A, a company may by reference include in its
memorandum any of the following objects, that is to say the business of -
(a) insurance and re-insurance of all kinds;
(b) packaging of goods of all kinds;
(c) buying, selling and dealing in goods of all kinds;
(d) designing and manufacturing of goods of all kinds;
(e) mining and quarrying and exploration for metals, minerals, fossil fuels
and precious stones of all kinds and their preparation for sale or use;
(f) exploring for, the drilling for, the moving, transporting and refining
petroleum and hydro carbon products including oil and oil products;
(g) scientific research including the improvement, discovery and development
of processes, inventions, patents and designs and the construction,
maintenance and operation of laboratories and research centres;
(h) land, sea and air undertakings including the land, ship and air carriage
of passengers, mails and goods of all kinds;
(i) ships and aircraft owners, managers, operators, agents, builders and
repairers;
(j) acquiring, owning, selling, chartering, repairing or dealing in ships and
aircraft;
travel agents, freight contractors and forwarding agents;
(l) dock owners, wharfingers, warehousemen;
ship chandlers and dealing in rope, canvas oil and ship stores of all
kinds;
(n) all forms of engineering;
(o) developing, operating, advising or acting as technical consultants to any
other enterprise or business;
(p) farmers, livestock breeders and keepers, graziers, butchers, tanners and
processors of and dealers in all kinds of live and dead stock, wool,
hides, tallow, grain, vegetables and other produce;
(q) acquiring by purchase or otherwise and holding as an investment
inventions, patents, trade marks, trade names, trade secrets, designs and
the like;
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(r) buying, selling, hiring, letting and dealing in conveyances of any sort;
and
(s) employing, providing, hiring out and acting as agent for artists, actors,
entertainers of all sorts, authors, composers, producers, directors,
engineers and experts or specialists of any kind;
(t) to acquire by purchase or otherwise and hold, sell, dispose of and deal in
real property situated outside Bermuda and in personal property of all
kinds wheresoever situated;
(u) to enter into any guarantee, contract of indemnity or suretyship and to
assure, support or secure with or without consideration or benefit the
performance of any obligations of any person or persons and to guarantee
the fidelity of individuals filling or about to fill situations of trust
or confidence;
(v) to be and carry on business of a mutual fund within the meaning of section
156A.
Provided that none of these objects shall enable the company to carry on
restricted business activity as set out in the Ninth Schedule except with
the consent of the Minister.
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Signed by each subscriber in the presence of at least one witness attesting the
signature thereof:
____________________________________ __________________________________
____________________________________ __________________________________
____________________________________ __________________________________
____________________________________ __________________________________
(Subscribers) (Witnesses)
SUBSCRIBED this 17th day of Febraury, 2000
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STAMP DUTY (To be affixed)
Not Applicable
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THE SCHEDULE
(REFERRED TO IN CLAUSE 7 OF THE MEMORANDUM OF ASSOCIATION)
(a) to borrow and raise money in any currency or currencies and to secure or
discharge any debt or obligation in any manner and in particular (without
prejudice to the generality of the foregoing) by mortgages of or charges
upon all or any part of the undertaking, property and assets (present and
future) and uncalled capital of the company or by the creation and issue
of securities;
(b) to enter into any guarantee, contract of indemnity or suretyship and in
particular (without prejudice to the generality of the foregoing) to
guarantee, support or secure, with or without consideration, whether by
personal obligation or by mortgaging or charging all or any part of the
undertaking, property and assets (present and future) and uncalled capital
of the company or by both such methods or in any other manner, the
performance of any obligations or commitments of, and the repayment or
payment of the principal amounts of and any premiums, interest, dividends
and other moneys payable on or in respect of any securities or liabilities
of, any person, including (without prejudice to the generality of the
foregoing) any company which is for the time being a subsidiary or a
holding company of the company or another subsidiary of a holding company
of the company or otherwise associated with the company;
(c) to accept, draw, make, create, issue, execute, discount, endorse,
negotiate and deal in bills of exchange, promissory notes, and other
instruments and securities, whether negotiable or otherwise;
(d) to sell, exchange, mortgage, charge, let on rent, share of profit, royalty
or otherwise, grant licences, easements, options, servitudes and other
rights over, and in any other manner deal with or dispose of, all or any
part of the undertaking, property and assets (present and future) of the
company for any consideration and in particular (without prejudice to the
generality of the foregoing) for any securities;
(e) to issue and allot securities of the company for cash or in payment or
part payment for any real or personal property purchased or otherwise
acquired by the company or any services rendered to the company or as
security for any obligation or amount (even if less than the nominal
amount of such securities) or for any other purpose;
(f) to grant pensions, annuities, or other allowances, including allowances on
death, to any directors, officers or employees or former directors,
officers or employees of the company or any company which at any time is
or was a subsidiary or a holding company or another subsidiary of a
holding company of the company or otherwise associated with the company or
of any predecessor in business of any of them, and to the relations,
connections or dependants of any such persons, and to other persons whose
service or services have directly or indirectly been of benefit to the
company or whom the company considers have any moral claim on the company
or to their relations connections or dependants, and to establish or
support any associations, institutions, clubs, schools, building and
housing schemes, funds and trusts, and to make payment towards insurance
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or other arrangements likely to benefit any such persons or otherwise
advance the interests of the company or of its members or for any
national, charitable, benevolent, educational, social, public, general or
useful object;
(g) subject to the provisions of Section 42 of the Companies Act 1981, to
issue preference shares which at the option of the holders thereof are to
be liable to be redeemed;
(h) to purchase its own shares in accordance with the provisions of Section
42A of the Companies Act 1981.
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THE COMPANIES ACT 1981
FIRST SCHEDULE (section 11(1))
A company limited by shares, or other company having a share capital, may
exercise all or any of the following powers subject to any provision of law or
its memorandum -
(1) [repealed by 1992:51]
(2) to acquire or undertake the whole or any part of the business, property
and liabilities of any person carrying on any business that the company is
authorized to carry on;
(3) to apply for, register, purchase, lease, acquire, hold, use, control,
licence, sell, assign or dispose of patents, patent rights, copyrights,
trade marks, formulae, licences, inventions, processes, distinctive marks
and similar rights;
(4) to enter into partnership or into any arrangement for sharing of profits,
union of interests, co-operation, joint venture, reciprocal concession or
otherwise with any person carrying on or engaged in or about to carry on
or engage in any business or transaction that the company is authorized to
carry on or engage in or any business or transaction capable of being
conducted so as to benefit the company;
(5) to take or otherwise acquire and hold securities in any other body
corporate having objects altogether or in part similar to those of the
company or carrying on any business capable of being conducted so as to
benefit the company;
(6) subject to section 96 to lend money to any employee or to any person
having dealings with the company or with whom the company proposes to have
dealings or to any other body corporate any of whose shares are held by
the company;
(7) to apply for, secure or acquire by grant, legislative enactment,
assignment, transfer, purchase or otherwise and to exercise, carry out and
enjoy any charter, licence, power, authority, franchise, concession, right
or privilege, that any government or authority or any body corporate or
other public body may be empowered to grant, and to pay for, aid in and
contribute toward carrying it into effect and to assume any liabilities or
obligations incidental thereto;
(8) to establish and support or aid in the establishment and support of
associations, institutions, funds or trusts for the benefit of employees
or former employees of the company or its predecessors, or the dependants
or connections of such employees or former employees, and grant pensions
and allowances, and make payments towards insurance or for any object
similar to those set forth in this paragraph, and to subscribe or
guarantee money for charitable, benevolent, educational or religious
objects or for any exhibition or for any public, general or useful
objects;
(9) to promote any company for the purpose of acquiring or taking over any of
the property and liabilities of the company or for any other purpose that
may benefit the company;
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to purchase, lease, take in exchange, hire or otherwise acquire any
personal property and any rights or privileges that the company considers
necessary or convenient for the purposes of its business;
(11) to construct, maintain, alter, renovate and demolish any buildings or
works necessary or convenient for its objects;
to take land in Bermuda by way of lease or letting agreement for a term
not exceeding twenty-one years, being land bona fide required for the
purposes of the business of the company and with the consent of the
Minister granted in his discretion to take land in Bermuda by way of lease
or letting agreement for a similar period in order to provide
accommodation or recreational facilities for its officers and employees
and when no longer necessary for any of the above purposes to terminate or
transfer the lease or letting agreement;
except to the extent, if any, as may be otherwise expressly provided in
its incorporating Act or memorandum and subject to this Act every company
shall have power to invest the moneys of the Company by way of mortgage of
real or personal property of every description in Bermuda or elsewhere and
to sell, exchange, vary, or dispose of such mortgage as the company shall
from time to time determine;
14) to construct, improve, maintain, work, manage, carry out or control any
roads, ways, tramways, branches or sidings, bridges, reservoirs,
watercourses, wharves, factories, warehouses, electric works, shops,
stores and other works and conveniences that may advance the interests of
the company and contribute to, subsidize or otherwise assist or take part
in the construction, improvement, maintenance, working, management,
carrying out of control thereof;
to raise and assist in raising money for, and aid by way of bonus, loan,
promise, endorsement, guarantee or otherwise, any person and guarantee the
performance or fulfillment of any contracts or obligations of any person,
and in particular guarantee the payment of the principal of and interest
on the debt obligations of any such person;
to borrow or raise or secure the payment of money in such manner as the
company may think fit;
to draw, make, accept, endorse, discount, execute and issue bills of
exchange, promissory notes, bills of lading, warrants and other negotiable
or transferable instruments;
when properly authorized to do so, to sell, lease, exchange or otherwise
dispose of the undertaking of the company or any part thereof as an
entirety or substantially as an entirety for such consideration as the
company thinks fit;
to sell, improve, manage, develop, exchange, lease, dispose of, turn to
account or otherwise deal with the property of the company in the ordinary
course of its business;
to adopt such means of making known the products of the company as may
seem
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expedient, and in particular by advertising, by purchase and exhibition of
works of art or interest, by publication of books and periodicals and by
granting prizes and rewards and making donations;
to cause the company to be registered and recognized in any foreign
jurisdiction, and designate persons therein according to the laws of that
foreign jurisdiction or to represent the company and to accept service for
and on behalf of the company of any process or suit;
to allot and issue fully-paid shares of the company in payment or part
payment of any property purchased or otherwise acquired by the company or
for any past services performed for the company;
to distribute among the members of the company in cash, kind, specie or
otherwise as may be resolved, by way of dividend; bonus or in any other
manner considered advisable, any property of the company, but not so as to
decrease the capital of the company unless the distribution is made for
the purpose of enabling the company to be dissolved or the distribution,
apart from this paragraph, would be otherwise lawful;
to establish agencies and branches;
to take or hold mortgages; hypothecs, liens and charges to secure payment
of the purchase price, or of any unpaid balance of the purchase price, of
any part of the property of the company of whatsoever kind sold by the
company, or for any money due to the company from purchasers and others
and to sell or otherwise dispose of any such mortgage, hypothec, lien or
charge;
to pay all costs and expenses of or incidental to the incorporation and
organization of the company;
to invest and deal with the moneys of the company not immediately required
for the objects of the company in such manner as may be determined;
to do any of the things authorized by this Schedule and all things
authorized by its memorandum as principals, agents, contractors, trustees
or otherwise, and either alone or in conjunction with others;
to do all such other things as are incidental or conducive to the
attainment of the objects and the exercise of the powers of the company.
Every company may exercise its powers beyond the boundaries of Bermuda to the
extent to which the laws in force where the powers are sought to be exercised
permit.
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FORM NO. la
[SEAL]
BERMUDA
THE COMPANIES ACT 1981
CONSENT
PURSUANT TO SECTION 4A
In exercise of the powers conferred upon him by section 4A of the Companies Act
1981, the Minister of Finance hereby gives his consent to:-
TYCO HOLDINGS (BERMUDA) NO. 9 LIMITED
to carry on restricted business activities in accordance with the Companies Act
1981
Dated this 25th day of February 2000
MINISTER OF FINANCE
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FORM NO. 13
[SEAL]
BERMUDA
THE COMPANIES ACT
NOTICE OF ADDRESS OF REGISTERED OFFICE
PURSUANT TO SECTION 62
Name of Company TYCO HOLDINGS (BERMUDA) NO. 9 LIMITED
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In accordance with section 62(2) of the Companies Act, 1981, I hereby give
notice that the address of the registered office of the above-mentioned Company
is
The Zurich Centre, Second Floor
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90 Pitts Bay Road
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Pembroke HM 08, Bermuda
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Signed
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State whether Director or Secretary Secretary
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Date 6 March 2000
--------------------------