Exhibit 3.1
THE COMPANIES LAW (2003 REVISION)
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM & ARTICLES
OF
ASSOCIATION
OF
UNITED NATIONAL GROUP, LTD.
(AMENDED AND RESTATED BY SPECIAL RESOLUTION DATED - DECEMBER 2003)
TABLE OF CONTENTS
MEMORANDUM OF ASSOCIATION
The Name of the Company.............................................. 1
The Registered Office of the Company................................. 1
The Objects for which the Company is established..................... 1
The Liability of the Members......................................... 1
The Capital of the Company........................................... 1
ARTICLES OF ASSOCIATION
Table A.............................................................. 1
Interpretation....................................................... 1
Preliminary.......................................................... 4
Shares............................................................... 4
Common Shares........................................................ 5
Preferred Shares..................................................... 6
Voting Limitations; Provision of Information......................... 7
Variation of Rights Attaching to Shares.............................. 9
Issue of Options and Warrants........................................ 10
Certificates......................................................... 10
Transfer of Shares................................................... 10
Transmission of Shares............................................... 11
Alteration of Capital................................................ 11
Redemption and Purchase of Own Shares................................ 12
Closing Register of Members or Fixing Record Date.................... 14
General Meetings..................................................... 14
Notice of General Meetings........................................... 15
Proceedings at General Meetings...................................... 15
Votes of Shareholders................................................ 16
Corporations and Other Entities Acting by Representatives at Meetings 17
Directors............................................................ 17
Powers and Duties of Directors....................................... 17
Borrowing Powers of Directors........................................ 19
The Seal............................................................. 19
Disqualification of Directors........................................ 19
Proceedings of Directors............................................. 19
Dividends............................................................ 21
Accounts and Audit................................................... 22
Capitalisation of Profits............................................ 22
Share Premium Account................................................ 23
Notices.............................................................. 23
Indemnity; Exculpation............................................... 24
Indemnity from Tax Liability Resulting from Acts of Shareholders..... 25
Certain Subsidiaries................................................. 26
Non-Recognition of Trusts............................................ 26
Winding Up........................................................... 27
Amendment of Articles of Association................................. 27
Registration by Way of Continuation.................................. 27
THE COMPANIES LAW (2003 REVISION)
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
UNITED NATIONAL GROUP, LTD.
(AMENDED AND RESTATED BY SPECIAL RESOLUTION DATED - DECEMBER 2003)
1. The name of the Company is UNITED NATIONAL GROUP, LTD.
2. The Registered Office of the Company will be situated at WALKER HOUSE,
MARY STREET, PO BOX 908GT, GEORGE TOWN, GRAND CAYMAN, CAYMAN ISLANDS or at
such other location as the Board of Directors may from time to time
determine.
3. The objects for which the Company is established are unrestricted and the
Company shall have full power and authority to carry out any object not
prohibited by any law as provided by the Companies Law (2003 Revision), as
the same may be revised from time to time, or any other law of the Cayman
Islands.
4. The Company shall have and be capable of exercising all the functions of a
natural person of full capacity irrespective of any question of corporate
benefit as provided by Section 27(2) of the Companies Law (2003 Revision),
as the same may be revised from time to time.
5. Nothing in the preceding sections shall be deemed to permit the Company to
carry on the business of a Bank or Trust Company without being licensed in
that behalf under the provisions of the Banks & Trust Companies Law (2003
Revision), as amended or revised from time to time, to carry on Insurance
Business from within the Cayman Islands or the business of an Insurance
Manager, Agent, Sub-agent or Broker without being licensed in that behalf
under the provisions of the Insurance Law (2001 Revision), as amended or
revised from time to time, to carry on the business of Company Management
without being licensed in that behalf under the provisions of the
Companies Management Law (2003 Revision), as amended or revised from time
to time, or to carry on a securities investment business without being
licensed or exempt from licensing under the Securities Investment Business
Law (2003 Revision), as amended or revised from time to time.
6. The Company will not trade in the Cayman Islands with any person, firm or
corporation except in furtherance of the business of the Company carried
on outside the Cayman Islands; provided that nothing in this section shall
be construed as to prevent the Company effecting and concluding contracts
in the Cayman Islands, and exercising in the Cayman Islands all of its
powers necessary for the carrying on of its business outside the Cayman
Islands.
7. The liability of the Shareholders is limited to the amount, if any, unpaid
on the Shares respectively held by them.
8. The capital of the Company is US$100,000 divided into 900,000,000 COMMON
SHARES and 100,000,000 PREFERRED SHARES of a nominal or par value of
US$0.0001; provided that subject to the
provisions of the Companies Law (2003 Revision), as amended or revised
from time to time, and the Articles of Association the Company shall have
power to redeem or purchase any of its Shares and to sub-divide or
consolidate the said Shares or any of them and to issue all or any part of
its capital whether original, redeemed, increased or reduced with or
without any preference, priority or special privilege or subject to any
postponement of rights or to any conditions or restrictions whatsoever and
so that unless the conditions of issue shall otherwise expressly provide
every issue of Shares whether stated to be Common Shares or Preferred
Shares or otherwise shall be subject to the powers on the part of the
Company hereinbefore provided.
9. The Company has the power to register by way of continuation as a body
corporate limited by shares under the laws of any jurisdiction outside of
the Cayman Islands and to be deregistered in the Cayman Islands.
THE COMPANIES LAW (2003 REVISION)
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED ARTICLES OF ASSOCIATION
OF
UNITED NATIONAL GROUP, LTD.
(AMENDED AND RESTATED BY SPECIAL RESOLUTION DATED - DECEMBER 2003)
TABLE A
The Regulations contained or incorporated in Table `A' in the First Schedule of
the Companies Law (2003 Revision) shall not apply to this Company and the
following Articles shall comprise the Articles of Association of the Company:
INTERPRETATION
1. In these Articles:
"AFFILIATE" shall have the meaning ascribed to such term in Rule 12b-2 of
the Exchange Act.
"APPRAISED VALUE" with respect to any Common Share means, as of any
specified date, the value of such Common Share as of such date as
determined by an independent appraiser retained by the Company and
reasonably acceptable to the Shareholder the Common Shares of which the
Company has elected to purchase pursuant to Article 44. The Company shall
pay the costs and fees of such appraiser, and the decision of the
appraiser making such determination of Appraised Value shall be final and
binding on the Company and the Shareholder. Such Appraised Value shall be
determined as a pro rata portion of the value of the Company taken as a
whole, based on the higher of (a) the value derived from a hypothetical
sale of the Company as a going concern by a willing seller to a willing
buyer (neither acting under any compulsion) and (b) the liquidation value
of the Company. No discount shall be applied on account of (i) the
purchased Shares representing a minority interest, (ii) any lack of
liquidity of the purchased Shares, (iii) the fact that the purchased
Shares may constitute "restricted securities" for securities law purposes,
(iv) the existence of the Company's right, as set forth in these Articles
and any Shareholders Agreement, to require Shareholders to sell Shares to
the Company or to one or more third parties designated by the Company or
(v) the existence of the possibility of a reduction in voting power
pursuant to these Articles.
"ARTICLES" means these Articles of Association of the Company, as amended
or restated from time to time.
"ATTRIBUTION PERCENTAGE" means, with respect to a Shareholder and a
Tentative 9.5% U.S. Shareholder, the percentage of the Shareholder's
Shares that are treated as Controlled Shares of such Tentative 9.5% U.S.
Shareholder.
"BUSINESS COMBINATION TRANSACTION" means any transaction, whether effected
by means of a share purchase or other means, following which any person
(other than Fox Paine & Company, LLC and its affiliates) would have a
majority of the votes represented by issued and outstanding Shares and
entitled to be cast at any general meeting of the Company.
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"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which banks in either of George Town, Grand Cayman or New York, New York
are authorised or obligated by law or executive order to close.
"CODE" means the United States Internal Revenue Code of 1986, as amended
from time to time, or any United States federal statute then in effect
that has replaced such statute, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section,
if any, of such replacement statute.
"COMMON SHARE" means a Share in the capital of the Company having the
rights and privileges attached thereto as provided in these Articles or
resolution of the Board of Directors.
"COMPANIES LAW" means the Companies Law (2003 Revision) of the Cayman
Islands, as amended or revised from time to time.
"CONFIDENTIAL INFORMATION" shall have the meaning given to such term in
Article 20(d).
"CONTROLLED SHARES" means, in reference to any person, all Shares that
such person owns or is deemed to own directly, indirectly (within the
meaning of Section 958(a)(2) of the Code) or constructively (within the
meaning of Section 958(b) of the Code and Treasury Regulations promulgated
thereunder and under Section 957 of the Code).
"DIRECTORS" and "BOARD OF DIRECTORS" means the Directors of the Company as
appointed in accordance herewith and then in office, or as the case may
be, the Directors assembled as a Board of Directors or as a committee
thereof.
"DIVIDEND PERIODS" shall have the meaning given to such term in Article
16(b).
"EXCHANGE" shall mean any securities exchange or other system on which any
Shares of the Company may be listed or otherwise authorised for trading
from time to time, including, as may be applicable, The New York Stock
Exchange and The Nasdaq National Market.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated
thereunder.
"FAIR VALUE" with respect to any Share means, as of any specified date,
(a) if such Shares are not traded on any Exchange, the fair market value
per share as determined by the Board of Directors without a minority
discount but with an appropriate liquidity discount, such value and
liquidity discount, if any, as determined by the Board of Directors, or
(b) if such Shares are traded on any Exchange, the fair market value per
Share as determined by the Board of Directors based on the average of the
last sales price per Share or if there is none, the average of the bid and
asked price per Share, in each case for the eight (8) business days prior
to such date. If a Shareholder disagrees with the price so determined by
the Board of Directors pursuant to clause (i), the Fair Value shall be the
Appraised Value. The Fair Value per Class A Common Share as of any
specified date shall be identical to the Fair Value per Class B Common
Share on such date.
"INDIRECT", when referring to a holder of Shares, means ownership of
Shares within the meaning of Section 958(a)(2) of the Code.
"MEMORANDUM OF ASSOCIATION" means the Memorandum of Association of the
Company, as amended and restated from time to time.
"ORDINARY RESOLUTION" means a resolution:
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(a) passed by a simple majority of the votes cast by Shareholders as
such Shareholders being entitled to do so, vote in person or, where
proxies are allowed, by proxy at a general meeting of the Company
and where a poll is taken regard shall be had in computing a
majority to the number of votes to which each Shareholder is
entitled; or
(b) approved in writing by all of the Shareholders entitled to vote at a
general meeting of the Company in one or more instruments each
signed by one or more of the Shareholders and the effective date of
the resolution so adopted shall be the date on which the instrument,
or the last of such instruments if more than one, is executed.
"PAID UP" means paid up as to the par value and any premium payable in
respect of the issue of any Shares and includes credited as paid up.
"PREFERRED SHARE" means a Share in the capital of the Company having the
rights and preferences attached thereto as provided in these Articles or
by resolution adopted by the Board in accordance herewith.
"PURCHASE NOTICE" means a written notice of the Board of Directors'
determination to require a Shareholder to sell Shares, which notice shall
specify the date on which any such Shares are to be purchased and the
price at which such Shares are to be purchased in accordance with Article
44(b).
"REGISTER OF MEMBERS" means the register to be kept by the Company in
accordance with Section 40 of the Companies Law.
"REQUIRED SALE" shall have the meaning set forth in Article 44(c).
"REQUIRED SELLER" shall have the meaning given such term in Article 44(b).
"SEAL" means the Common Seal of the Company (if adopted) including any
facsimile thereof.
"SERVICE" shall have the meaning given to such term in Article 20(d).
"SHARE" means any share in the capital of the Company, including Common
Shares and Preferred Shares and any fraction of any share.
"SHAREHOLDER" means a person the name of which is entered in the Register
of Members and includes each subscriber to the Memorandum of Association
pending the issue to him of the subscriber Share or Shares.
"SIGNED" includes a signature or representation of a signature affixed by
mechanical means.
"SPECIAL RESOLUTION" means a resolution passed in accordance with Section
60 of the Companies Law, being a resolution:
(a) passed by a majority of not less than two-thirds of such
Shareholders as, being entitled to do so, vote in person or, where
proxies are allowed, by proxy at a general meeting of the Company of
which notice specifying the intention to propose the resolution as a
special resolution has been duly given and where a poll is taken
regard shall be had in computing a majority to the number of votes
to which each Shareholder is entitled; or
(b) approved in writing by all of the Shareholders entitled to vote at a
general meeting of the Company in one or more instruments each
signed by one or more of the Shareholders and the effective date of
the Special Resolution so adopted shall be the date on which the
instrument or the last of such instruments if more than one, is
executed.
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"TENTATIVE 9.5% U.S. SHAREHOLDER" means a U.S. Person that, but for
adjustments to the voting rights of Shares pursuant to Article 19, would
be a 9.5% U.S. Shareholder.
"U.S. PERSON" means a "United States person" as defined in Section 957(c)
of the Code.
"9.5% U.S. SHAREHOLDER" means a U.S. Person the Controlled Shares of which
constitute nine and one-half percent (9.5%) or more of the voting power of
all issued and outstanding Shares of the Company and that would be
generally required to recognize income with respect to the Company under
Section 951(a)(1) of the Code, if the Company were a controlled foreign
corporation as defined in Section 957 of the Code and if the ownership
threshold under Section 951(b) of the Code were 9.5%.
2. In these Articles, save where the context requires otherwise:
(a) words importing the singular number shall include the plural number
and vice versa;
(b) words importing the masculine gender only shall include the feminine
gender and vice versa;
(c) words importing persons only shall include companies or associations
or bodies of persons, whether corporate or not;
(d) "MAY" shall be construed as permissive and "SHALL" and "WILL" shall
be construed as imperative;
(e) references to a "DOLLAR" or "DOLLARS" or "$" are references to
dollars of the United States;
(f) references to a particular "ARTICLE" or "ARTICLES" refer to a
particular Article or Articles of these Articles; and
(g) references to a statutory enactment shall include reference to any
amendment or re-enactment thereof from time to time being in force.
3. Subject to the last two preceding Articles, any words defined in the
Companies Law shall, if not inconsistent with the subject or context, bear
the same meaning in these Articles.
PRELIMINARY
4. The business of the Company may be commenced as soon after incorporation
as the Board of Directors may see fit.
5. The registered office of the Company shall be at such address in the
Cayman Islands as the Board of Directors shall from time to time
determine. The Company may in addition establish and maintain such other
offices and places of business and agencies in such places as the Board of
Directors may from time to time determine.
SHARES
6. Except as otherwise provided in these Articles, all Shares for the time
being and from time to time unissued shall be under the control of the
Board of Directors, and may be re-designated, allotted or disposed of in
such manner, to such persons and on such terms as the Board of Directors
in its sole and absolute discretion may determine.
7. Subject to the provisions, if any, in the Memorandum and these Articles
and without prejudice to any rights attached to any existing Shares the
Board of Directors may allot, issue, grant options or
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warrants over or otherwise dispose of any Shares with or without
preferred, deferred, qualified or other rights or restrictions, whether in
regard to dividend, voting, return of capital or otherwise, and to such
persons at such times and on such other terms as it thinks proper.
8. Upon approval of the Board of Directors, such number of Common Shares, or
other Shares or securities of the Company, as may be required for such
purposes shall be reserved for issuance in connection with an option,
right, warrant or other security of the Company or any other person that
is exercisable for, convertible into, exchangeable for or otherwise
issuable in respect of such Common Shares or other Shares or securities of
the Company.
9. All Shares shall be issued fully paid as to their nominal value and any
premium determined by the Board of Directors at the time of issue and
shall be non-assessable.
10. The Company shall not issue Shares to bearer.
11. Notwithstanding the foregoing or any other provision of these Articles,
the Company shall not issue any Shares or grant options or warrants in a
manner that the Board of Directors in its sole and absolute discretion
determines may result by reason of such issuance or grant in a non-de
minimis adverse tax, legal or regulatory consequence to the Company, any
of its subsidiaries or any direct or indirect holder of Shares or its
Affiliates.
COMMON SHARES
12. The Common Shares shall initially be divided into two classes, Class A
Common Shares and Class B Common Shares and the holders shall be entitled
to:
(a) dividends in accordance with the relevant provisions of these
Articles;
(b) rights in relation to winding up of the Company provided for in
these Articles; and
(c) attend general meetings of the Company and, subject to the voting
limitations in Article 19, shall be entitled to one vote for each
Class A Common Share and ten votes for each Class B Common Share
registered in the name of such Shareholder in the Register of
Members, both in accordance with the relevant provisions of these
Articles.
13. All Common Shares shall rank pari passu with each other in all respects.
Notwithstanding anything in the Memorandum or these Articles to the
contrary:
(a) The holders of Common Shares shall be entitled to receive, from time
to time, when and as declared, in the discretion of the Board of
Directors, such cash dividends as the Board of Directors may from
time to time determine, out of such funds as are legally available
therefor, in proportion to the number of Shares held by them,
respectively, without regard to class.
(b) The holders of Common Shares shall be entitled to receive, from time
to time, when and as declared, in the discretion of the Board of
Directors, such dividends of Shares or other securities of the
Company or other property as the Board of Directors may determine,
out of such funds as are legally available therefor. Such dividends
on, or share splits of, any class of Common Shares shall not be paid
or issued unless paid or issued on all classes of Common Shares, in
which case such dividends shall be paid or issued only in Shares of
that class. Any decrease in the number of Shares of any class of
Common Shares resulting from a combination or consolidation of
Shares or other capital reclassification shall not be permitted
unless parallel action is taken with respect to each other class of
Common Shares, so that the number of Shares of each class of Common
Shares outstanding shall be decreased proportionately.
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(c) In the event of any liquidation, dissolution or winding up of the
Company, the holders of Common Shares shall be entitled to receive
the assets and funds of the Company in proportion to the number of
Shares held by them, respectively, without regard to class.
14. (a) Each Class B Common Share shall be convertible at the option of the
holder thereof into one Class A Common Share by means of a
redemption of such Class B Common Share and in consideration for the
issue of one Class A Common Share.
(b) Each Class B Common Share shall convert into one Class A Common
Share, by means of a redemption of such Class B Common Share in
consideration for the issue of one Class A Common Share, upon any
transfer by the registered holder of such Class B Common Share,
whether or not for value, except for transfers to a nominee or
Affiliate of such holder in a transfer that will not result in a
change of beneficial ownership (as determined under Rule 13d-3 under
the Exchange Act) or to a person that already holds Class B Common
Shares.
PREFERRED SHARES
15. Preferred Shares may be issued from time to time in one or more series,
each of such series to have such voting powers (full or limited),
designations, preferences and relative, participating, optional or other
special rights and qualifications, limitations or restrictions thereof as
are stated and expressed in any resolution or resolutions pass prior to
the issue of such Preferred Shares providing for the issue of such series
adopted by the Board of Directors as hereinafter provided.
16. Authority is hereby granted to the Board of Directors, subject to the
provisions of the Memorandum of the Association, these Articles and
applicable law, to create one or more series of Preferred Shares and, with
respect to each such series, to fix by resolution or resolutions prior to
the issuance of such Preferred Shares, without any further vote or action
by the Shareholders of the Company providing for the issue of such series:
(a) the number of Preferred Shares to constitute such series and the
distinctive designation thereof;
(b) the dividend rate and preferences with respect thereto, if any, on
the Preferred Shares of such series, the dividend payment dates, the
periods in respect of which dividends are payable ("DIVIDEND
PERIODS"), whether such dividends shall be cumulative and, if
cumulative, the date or dates from which dividends shall accumulate
and whether such dividends may be payable in cash or in kind;
(c) whether the Preferred Shares of such series shall be convertible
into, or exchangeable for, Shares of any other class or classes or
any other series of the same class or other class or classes of
Shares of the Company and the conversion price or prices or rate or
rates, or the rate or rates at which such exchange may be made, with
such adjustments, if any, as shall be stated and expressed or
provided in such resolution or resolutions;
(d) the preferences, if any, and the amounts thereof, that the Preferred
Shares of such series shall be entitled to receive upon the winding
up, liquidation or dissolution of the Company;
(e) the voting power, if any, of the Preferred Shares of such series;
(f) redemption terms, transfer restrictions and rights of first refusal
with respect to the Preferred Shares of such series; and
(g) such other terms, conditions, special rights and provisions as may
seem advisable to the Board of Directors.
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Notwithstanding the fixing of the number of Preferred Shares
constituting a particular series upon the issuance thereof, the
Board of Directors at any time thereafter may authorize the issuance
of additional Preferred Shares of the same series and with the same
rights subject always to the Companies Law and the Memorandum of
Association.
17. No dividend shall be declared and set apart for payment on any
series of Preferred Shares in respect of any Dividend Period unless
all dividends have been paid, or declared and set apart for payment,
in full on all Preferred Shares of each other series entitled to
cumulative dividends at the time outstanding that rank senior or
equally as to dividends with the series in question ("SENIOR
PREFERRED SHARES") and there shall likewise be or have been paid, or
declared and set apart for payment, on all Senior Preferred Shares,
dividends rateably in accordance with the sums that would be payable
on such Preferred Shares.
18. If, upon the winding up of the Company, the assets of the Company
distributable among the holders of any one or more series of
Preferred Shares that (a) are entitled to a preference over the
holders of the Common Shares upon such winding up, and (b) rank
equally in connection with any such distribution, shall be
insufficient to pay in full the preferential amount to which the
holders of such Preferred Shares shall be entitled, then such
assets, or the proceeds thereof, shall be distributed among the
holders of each such series of Preferred Shares rateably in
accordance with the sums that would otherwise have been payable on
such distribution if all sums payable were discharged in full.
VOTING LIMITATIONS; PROVISION OF INFORMATION
19. Adjustment of Voting Power.
(a) The voting power of all Shares is hereby adjusted (and shall be
automatically adjusted in the future) to the extent necessary so
that there is no 9.5% U.S. Shareholder. The Board of Directors shall
implement the foregoing in the manner provided herein; provided,
however, that the foregoing provision and the remainder of this
Article 19 shall not apply in the event that one Shareholder of the
Company owns greater than 75% of the voting power or value of the
issued and outstanding Shares.
(i) The Board of Directors shall from time to time, including
prior to any time at which a vote of Shareholders is taken,
take all reasonable steps necessary to ascertain, including
those specified in Article 20, through communications with
Shareholders or otherwise, whether there exists, or will exist
at the time any vote of Shareholders is taken, a Tentative
9.5% U.S. Shareholder.
(ii) In the event that a Tentative 9.5% U.S. Shareholder exists,
the aggregate votes conferred by Shares held by a Shareholder
and treated as Controlled Shares of that Tentative 9.5% U.S.
Shareholder shall be reduced to the extent necessary such that
the Controlled Shares of the Tentative 9.5% U.S. Shareholder
will constitute less than 9.5% of the voting power of all
issued and outstanding Shares. In applying the previous
sentence where Shares held by more than one Shareholder are
treated as Controlled Shares of such Tentative 9.5% U.S.
Shareholder, the reduction in votes shall apply to such
Shareholders in descending order according to their respective
Attribution Percentages; provided that, in the event of a tie,
the reduction shall apply pro rata to the Shareholders. The
votes of Shareholders owning no Shares treated as Controlled
Shares of any Tentative 9.5% U.S. Shareholder shall, in the
aggregate, be increased by the same number of votes subject to
reduction as described above. Such increase shall apply to all
such Shareholders in proportion to their voting power at that
time; provided that such increase shall be limited to the
extent necessary to avoid causing any U.S. Person to be a 9.5%
U.S. Shareholder. The adjustments of voting power described in
this Article 19 shall apply repeatedly until there is no 9.5%
U.S. Shareholder. The Board of Directors may deviate from any
of the principles described in this Article 19 and determine
that Shares held by a Shareholder shall
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carry different voting rights as it determines appropriate (A)
to avoid the existence of any 9.5% U.S. Shareholder or (B) to
avoid adverse tax, legal or regulatory consequences to the
Company, any subsidiary of the Company, or any other
Shareholder or its Affiliates. For the avoidance of doubt, in
applying the provisions of this Article 19, a share may carry
a fraction of a vote.
(b) In addition to the provisions of Article 19(a), Shares shall not
carry any right to vote to the extent that the Board of Directors
determines, in its sole and absolute discretion, that it is
necessary that such Shares should not carry the right to vote in
order to avoid adverse tax, legal or regulatory consequences to the
Company, any subsidiary of the Company, or any other direct or
indirect holder of Shares or its Affiliates; provided that no
adjustment pursuant to this sentence shall cause any person to
become a 9.5% U.S. Shareholder.
(c) Prior to any date on which Shareholders shall vote on any matter,
the Board of Directors shall (i) retain the services of an
internationally recognized accounting firm or organization with
comparable professional capabilities in order to assist the Company
in applying the principles of this Article 19, (ii) obtain from such
firm or organization a statement describing the information obtained
and procedures followed and setting forth the determinations made
with respect to this Article 19 and (iii) notify each Shareholder of
the voting power conferred by its Shares determined in accordance
with this Article 19.
(d) Any determination by the Board as to any adjustments to voting power
of any Share made pursuant to this Article 19 shall be final and
binding.
20. Provision of Certain Information.
(a) The Board of Directors shall have the authority to request from any
direct or indirect holder of Shares, and such holder shall provide,
such information as the Board of Directors may reasonably request
for the purpose of determining whether any holder's voting rights
are to be adjusted. If such holder fails to respond to such a
request, or submits incomplete or inaccurate information in response
to such a request, the Board of Directors may in their sole and
absolute discretion determine that such holder's Shares shall carry
no voting rights, in which case such Shares shall not carry any
voting rights until otherwise determined by the Board of Directors
in its sole and absolute discretion.
(b) Any direct or indirect holder of Shares shall give notice to the
Company within ten days following the date that such holder acquires
actual knowledge that it is the owner of Controlled Shares of 9.5%
or more of the voting power of all issued and outstanding Shares.
(c) Notwithstanding the foregoing, no Shareholder shall be liable to any
other Shareholder or the Company for any losses or damages resulting
from such holder's failure to respond to, or submission of
incomplete or inaccurate information in response to, a request under
paragraph (a) or from such Shareholder's failure to give notice
under paragraph (b) of this Article 20.
(d) Any information provided by any Shareholder to the Company pursuant
to this Article 20 or for purposes of making the analysis required
by Article 11, 19, 28 or 44, shall be deemed "confidential
information" (the "CONFIDENTIAL INFORMATION") and shall be used by
the Company solely for the purposes contemplated by such Articles
(except as may be required otherwise by applicable law or
regulation). The Company shall hold such Confidential Information in
strict confidence and shall not disclose any Confidential
Information that it receives, except (i) to the U.S. Internal
Revenue Service (the "SERVICE") if and to the extent the
Confidential Information is required by the Service, (ii) to any
outside legal counsel or accounting firm engaged by the Company to
make determinations regarding the relevant Articles, (iii) to
officers, employees or outside
8
advisors of the Company, for the purposes set forth in Article 20(e)
or (iv) as otherwise required by applicable law or regulation.
(e) The Company shall take all measures practicable to ensure the
continued confidentiality of the Confidential Information and shall
grant the persons referred to in Article 20(d)(ii) or (iii) access
to the Confidential Information only to the extent necessary to
allow them to assist the Company in any analysis required by Article
11, 19, 28 or 44 or to determine whether the Company would realize
any income that would be included in the income of any Shareholder
(or any interest holder, whether direct or indirect, of any
Shareholder) by operation of Section 953(c) of the Code. Prior to
granting access to the Confidential Information to such persons or
to any officer or employee as set forth below, the Company shall
inform them of its confidential nature and of the provisions of this
Article 20 and shall require them to abide by all the provisions of
this Article 20. The Company shall not disclose the Confidential
Information to any Director (other than a Director that is also
Chief Executive Officer, Chairman, Vice Chairman, President or Vice
President, except as required by law or regulation, upon request to
the Company).
(f) For the avoidance of doubt, the Company shall be permitted to
disclose to the Shareholders and others the relative voting
percentages of the Shareholders after application of Article 19. At
the written request of a Shareholder, the Confidential Information
of such Shareholder shall be destroyed or returned to such
Shareholder after the later to occur of (i) such Shareholder no
longer being a Shareholder or (ii) the expiration of the applicable
statute of limitations with respect to any Confidential Information
obtained for purposes of engaging in any tax-related analysis.
(g) The Company shall (i) notify a Shareholder immediately of the
existence, terms and circumstances surrounding any request made to
the Company to disclose any Confidential Information provided by or
with respect to such Shareholder and, prior to such disclosure,
shall permit such Shareholder a reasonable period of time to seek a
protective order or other appropriate remedy or waive compliance
with the provisions of this Article 20, and (ii) if, in the absence
of a protective order or waiver, such disclosure is required in the
opinion of counsel to the Company, the Company shall make such
disclosure without liability hereunder; provided that the Company
shall furnish only that portion of the Confidential Information that
is legally required, shall give such Shareholder notice of the
information to be disclosed as far in advance of its disclosure as
practicable and, upon the request of such Shareholder and at its
expense, shall use reasonable efforts to ensure that confidential
treatment will be accorded to all such disclosed information.
VARIATION OF RIGHTS ATTACHING TO SHARES
21. If at any time the Share capital is divided into different classes of
Shares, the rights attaching to any class of Shares (unless otherwise
provided by the terms of issue of the Shares of that class) may, subject
to Article 19 and to whatever other vote may be required by the Companies
Law, these Articles or applicable law, only be materially adversely varied
or abrogated with the consent in writing of the holders of two-thirds of
the voting power of the issued Shares of that class, or with the sanction
of a resolution passed by holders of at least two-thirds of the voting
power of the issued Shares of the class present in person or by proxy at a
separate general meeting of the holders of the Shares of the class. To
every such separate general meeting the provisions of these Articles
relating to general meetings of the Company shall mutatis mutandis apply,
but so that the necessary quorum shall be at least one (1) person holding
or representing by proxy at least one-third of the voting power of the
issued and outstanding Shares of that class and that any holder of Shares
of the class present in person or by proxy may demand a poll.
22. 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
9
deemed to be varied or abrogated by the creation or issue of further
Shares ranking pari passu therewith or junior thereto or the redemption or
purchase of Shares of any class by the Company.
23. The rights of holders of Common Shares shall not be deemed to be varied by
the creation or issue of Shares with preferred or other rights that may be
created or issued by the Board of Directors as provided in these Articles
without any vote or consent of the holders of Common Shares.
ISSUE OF OPTIONS AND WARRANTS
24. The Board may issue options or warrants to purchase or subscribe for any
class of Shares or other securities of the Company on such terms as it may
from time to time determine; provided that no such issuance of options or
warrants may be made if it will cause, in the Board of Directors' sole and
absolute discretion, a non-de minimis adverse tax, legal or regulatory
consequence to the Company, any of its subsidiaries or any direct or
indirect holder of Shares or its Affiliates. No options or warrants shall
be issued to bearer.
CERTIFICATES
25. Every person the name of which is entered as a Shareholder in the Register
of Members shall, without payment, be entitled to a certificate in the
form determined by the Board of Directors. Such certificate may be under
the Seal. All certificates shall specify the Share or Shares held by that
person and the amount paid up thereon; provided that in respect of a Share
or Shares held jointly by several persons the Company shall not be bound
to issue more than one certificate, and delivery of a certificate for a
Share to one of several joint holders shall be sufficient delivery to all.
26. If a Share certificate is defaced, lost or destroyed it may be renewed on
such terms, if any, as to evidence and indemnity as the Board of Directors
may think fit.
TRANSFER OF SHARES
27. The instrument of transfer of any Share shall be in any usual or common
form or such other form as the Board of Directors may, in its sole and
absolute discretion, approve and be executed by or on behalf of the
transferor and, if so required by the Board of Directors, shall also be
executed on behalf of the transferee, shall be accompanied by the
certificate (if any) of the Shares to which it relates and such other
evidence as the Board of Directors may reasonably require to show the
right of the transferor to make the transfer. The transferor shall be
deemed to remain a holder of the Share until the name of the transferee is
entered in the Register of Members in respect thereof.
28. The Board of Directors may decline to approve or register any transfer of
Shares if it appears to the Board of Directors, in its sole and absolute
discretion, after taking into account, among other things, the limitation
on voting rights contained in Article 19, that any non-de minimis adverse
tax, regulatory or legal consequences to the Company, any subsidiary of
the Company, or any other direct or indirect holder of Shares or its
Affiliates would result from such transfer (including if such consequence
arises as a result of any U.S. Person owning Controlled Shares
constituting 9.5% or more of the value of the Company or the voting Shares
of the Company (but subject to the provisions of Article 19)). The Board
of Directors shall have the authority to request from any direct or
indirect holder of Shares, and such holder shall provide, such information
as the Board of Directors may reasonably request for the purpose of
determining whether any transfer should be permitted. If such information
is not provided, the Board of Directors may decline to approve or register
such transfer.
29. Subject to any applicable requirements of any Exchange on which the Shares
are listed or traded, the Board of Directors (a) may decline to approve or
to register any transfer of any Share if a written opinion from counsel
acceptable to the Company shall not have been obtained to the effect that
registration of such transfer under the U.S. Securities Act of 1933, as
amended from time to time, is
10
not required and (b) shall decline to approve or to register any transfer
of any Share if the transferee shall not have been approved by applicable
governmental authorities if such approval is required.
30. If the Board of Directors refuses to register a transfer of any Share the
Secretary shall, within ten (10) business days after the date on which the
transfer was lodged with the Company, send to the transferor and
transferee notice of the refusal.
31. All instruments of transfer that are registered shall be retained by the
Company, but any instrument of transfer that the Board of Directors
declines to register shall (except in any case of fraud) be returned to
the person depositing the same.
TRANSMISSION OF SHARES
32. The legal personal representative of a deceased sole holder of a Share
shall be the only person recognised by the Company as having any title to
such Share. In the case of a Share registered in the name of two or more
holders, the survivors or survivor, or the legal personal representatives
of the deceased survivor, shall be the only person recognised by the
Company as having any title to such Share.
33. Any person becoming entitled to a Share in consequence of the death or
bankruptcy of a Shareholder shall, upon such evidence being produced as
may from time to time be required by the Board of Directors, have the
right either to be registered as a Shareholder in respect of the Share or,
instead of being registered himself, to make such transfer of the Share as
the deceased or bankrupt person could have made; provided, that the Board
of Directors shall, in either 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 the deceased or bankrupt person before the death or bankruptcy.
34. A person becoming entitled to a Share by reason of the death or bankruptcy
of the holder shall be entitled to the same dividends and other advantages
to which he would be entitled if he were the registered holder of the
Share, except that he shall not, before being registered as a Shareholder
in respect of the Share, be entitled in respect of it to exercise any
right conferred by membership in relation to meetings of the Company,
including voting.
ALTERATION OF CAPITAL
35. The Company may from time to time by Ordinary Resolution increase the
Share capital by such sum, to be divided into Shares of such classes and
amount, as the resolution shall prescribe.
36. The Company may by Ordinary Resolution:
(a) consolidate and divide all or any of its Share capital into Shares
of a larger amount than its existing Shares;
(b) convert all or any of its paid up Shares into stock and reconvert
that stock into paid up Shares of any denomination;
(c) subdivide its existing Shares, or any of them into Shares of a
smaller amount; provided that in the subdivision the proportion
between the amount paid and the amount, if any, unpaid on each
reduced Share shall be the same as it was in case of the Share from
which the reduced Share is derived;
(d) cancel any Shares that, at the date of the passing of the
resolution, have not been taken or agreed to be taken by any person
and diminish the amount of its Share capital by the amount of the
Shares so cancelled.
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37. Subject to Article 38, the Company may by Special Resolution reduce its
Share capital and any capital redemption reserve in any manner authorised
by law.
38. The Company shall not increase, reduce or alter its Share capital, if such
action, in the Board of Directors' sole and absolute discretion, would
cause a non-de minimis adverse tax, legal or regulatory consequence to the
Company, any of its subsidiaries or any Shareholder or its Affiliates.
REDEMPTION AND PURCHASE OF OWN SHARES
39. Subject to the provisions of the Companies Law and Article 13, the Company
may:
(a) issue Shares on terms providing that such Shares are to be redeemed
or are liable to be redeemed at the option of the Company or the
Shareholder on such terms and in such manner as the Board of
Directors may, before the issue of such Shares, determine;
(b) the Company may purchase its own Shares (including any redeemable
Shares); provided that the Shareholders shall have approved the
manner of purchase by Ordinary Resolution or that the manner of
purchase is in accordance with Articles 40 through 49 (this
authorisation is in accordance with Section 37(2) of the Companies
Law or any successor provision thereof); and
(c) make a payment in respect of the redemption or purchase of its own
Shares otherwise than out of profits or the proceeds of a fresh
issue of Shares or through the establishment of a capital redemption
reserve; and
provided, in each case, that such issuance, repurchase or redemption shall
not be made if, in the Board of Directors' sole and absolute discretion it
would result, in a non-de minimis adverse tax, legal or regulatory
consequence to the Company, any of its subsidiaries or any direct or
indirect holder of Shares or its Affiliates.
40. The redemption of Common Shares shall be effected in such manner as the
Board of Directors may determine before the issue of the Common Shares or
as otherwise provided by these Articles and the redemption of Preferred
Shares shall be effected in such manner as the Board of Directors may, by
resolution, determine before the issue of the Preferred Shares (this
authorisation is in accordance with Section 37(1) of the Companies Law or
any modification or re-enactment thereof for the time being in force).
41. Subject to Article 13, the Company may repurchase any Common Share listed
on an Exchange at such time, at such price and on such terms as determined
and agreed by the Board of Directors in its sole and absolute discretion;
provided that the maximum number of Common Shares that may be repurchased
shall be equal to the number of issued and outstanding Common Shares less
one Common Share; provided, further that: (a) such repurchase transactions
shall be in accordance with the relevant code, rules and regulations
applicable to the listing of the Shares on the Exchange; (b) at the time
of, and giving effect to, the repurchase the Company is able to pay its
debts as they fall due in the ordinary course of business; and (c) such
repurchase shall not result, in the Board of Directors' sole and absolute
discretion, in a non-de minimis adverse tax, legal or regulatory
consequence to the Company, any of its subsidiaries or any Shareholder or
its Affiliates.
42. Subject to Article 13, the Company may repurchase any Common Share not
listed on an Exchange at any price agreed between the Board and the
applicable Shareholder by serving a repurchase notice in a form approved
by the Board of Directors on the Shareholder from which the Common Shares
are to be repurchased at least two (2) days prior to the date specified in
the notice as being the repurchase date; provided that: (a) at the time
of, and giving effect to, the repurchase the Company is able to pay its
debts as they fall due in the ordinary course of business; and (b) such
repurchase shall not result, in the Board of Directors' sole and absolute
discretion, in a non-de minimis adverse tax, legal or
12
regulatory consequence to the Company, any of its subsidiaries or any
Shareholder or its Affiliates. The date of repurchase shall be the date
specified in the repurchase notice as determined and agreed by the Board
of Directors and the applicable Shareholder in their sole and absolute
discretion.
43. Redemption or Repurchase Pursuant to the terms of a Business Combination
(a) The Common Shares may be redeemed or repurchased by the Company upon
approval by the Board of Directors of, and an Ordinary Resolution of
the Shareholders adopting, any agreement entered into by the Company
relating to a Business Combination Transaction involving the
Company.
(b) The manner and terms of such redemption or repurchase, including the
consideration to be received by the holders of Common Shares in such
redemption or repurchase, which consideration may consist of cash,
securities or other property, shall be set forth in the agreement
relating to a Business Combination Transaction approved by the Board
of Directors and an Ordinary Resolution of Shareholders.
(c) The consideration to be received by all holders of Common Shares
shall be identical regardless of the class of Common Shares held by
such holders.
44. Required Sale of Shares.
(a) If the Board of Directors reasonably determines, that any
Shareholder's ownership of Shares (after giving effect to any voting
limitations set forth in Article 19) will result in a non-de minimis
adverse tax, legal or regulatory consequence to the Company, any of
its subsidiaries or any other direct or indirect holder of Shares or
its Affiliates, the Company shall have the option but not the
obligation to repurchase or assign to a third party the right to
purchase the minimum number of Shares held by such person that is
necessary to eliminate such non-de minimis adverse tax, legal or
regulatory consequence at a price equal to the Fair Value of such
Shares.
(b) In the event that the Company determines, pursuant to this Article
44, to repurchase or assign to a third party the right to purchase
Shares of a Shareholder (a "REQUIRED SELLER"), the Company shall
provide a Purchase Notice to such Shareholder. The Company may
revoke the Purchase Notice at any time prior to the closing of such
sale.
(c) The closing of a sale of Shares pursuant to this Article 44 (a
"REQUIRED SALE") shall take place at a location and date selected by
the Company and set forth in the Purchase Notice which shall be
delivered at least five (5) Business Days prior to the closing date
specified therein; provided, however, that such closing date shall
be no earlier than the later of (i) five (5) Business Days after a
Purchase Notice is given with respect to a purchase of Shares, and
(ii) five (5) Business Days after the date of determination of
Appraised Value in the event that a Shareholder objects to the
Board's determination of Fair Value contained in a Purchase Notice.
Payment of the Purchase Price shall be by wire transfer at such
closing.
(d) Notwithstanding the provisions of this Article 44, no person shall
be permitted to purchase Shares in a Required Sale to the extent
that such purchase would (after giving effect to any adjustment to
voting power imposed in accordance with Article 19) cause a non-de
minimus adverse tax, legal or regulatory consequences to the
Company, any of its subsidiaries, any other Shareholder or its
Affiliates.
45. The Company may make a payment in respect of the redemption or repurchase
of its own Shares in any manner permitted by the Companies Law, including
out of capital.
13
46. The holder of the Shares being repurchased shall be bound to deliver up to
the Company at its registered office or such other place as the Board
shall specify, the certificate(s) (if any) thereof for cancellation and
thereupon the Company shall pay to such holder the purchase or redemption
monies or consideration in respect thereof.
47. Any Share in respect of which notice of redemption has been given shall
not be entitled to participate in the profits of the Company or to vote in
any Company meeting in respect of the period after the date specified as
the date of redemption in the notice of redemption.
48. Except as provided in these Articles or the terms of any Preferred Shares,
the redemption or repurchase of any Share shall not be deemed to give rise
to the redemption or repurchase of any other Share.
49. The Board of Directors may when making payments in respect of redemption
or repurchase of Shares, if authorised by the terms of issue of the Shares
being redeemed or repurchased or with the agreement of the holder of such
Shares, make such payment either in cash or in specie.
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
50. For the purpose of determining those Shareholders that are entitled to
receive notice of, attend or vote at any general meeting or any
adjournment thereof, or those Shareholders that are entitled to receive
payment of any dividend, or in order to make a determination as to who is
a Shareholder for any other purpose, the Board of Directors may provide
that the Register of Members shall be closed for transfers for a stated
period, which period shall not exceed in any case forty (40) days. If the
Register of Members shall be so closed for the purpose of determining
those Shareholders that are entitled to receive notice of, attend or vote
at any general meeting the Register of Members shall be so closed for at
least ten (10) days immediately preceding such meeting and the record date
for such determination shall be the date of the closure of the Register of
Members.
51. In lieu of or apart from closing the Register of Members, (a) the Board of
Directors may fix in advance a date as the record date for any such
determination of those Shareholders that are entitled to receive notice
of, attend or vote at a meeting of the Shareholders and (b) for the
purpose of determining those Shareholders that are entitled to receive
payment of any dividend the Board of Directors may, at or within ninety
(90) days prior to the date of declaration of such dividend fix a
subsequent date as the record date for such determination.
52. If the Register of Members is not so closed and no record date is fixed
for the determination of those Shareholders entitled to receive notice of,
attend or vote at a general meeting or those Shareholders that are
entitled to receive payment of a dividend, the tenth (10th) day following
the date on which notice of the meeting is posted or the date on which the
resolution of the Board of Directors declaring such dividend is adopted,
as the case may be, shall be the record date for such determination of
Shareholders. When a determination of those Shareholders that are entitled
to receive notice of, attend or vote at a general meeting has been made as
provided in these Articles, such determination shall apply to any
adjournment thereof.
GENERAL MEETINGS
53. The Company shall, if required by the Companies Law, other applicable law
or the relevant code, rules or regulations applicable to the listing of
any Shares on the Exchange, hold a general meeting as its annual general
meeting, and shall specify the meeting as such in the notices calling it.
The annual general meeting shall be held at such time and place as the
Board of Directors shall appoint. At these meetings the report of the
Board of Directors (if any) shall be presented.
14
54. The Board of Directors may whenever it thinks fit proceed to convene a
general meeting of the Company. General meetings of the Company may be
held at such place, either within or without the Cayman Islands, as
determined by the Board of Directors.
55. General meetings shall also be convened on the written requisition of any
Shareholder or Shareholders entitled to attend and vote at general
meetings of the Company that hold not less than fifty per cent (50%) of
the eligible votes of the Company deposited at the registered office of
the Company specifying the objects of the meeting and requesting that such
meeting be held on a date no later than sixty (60) days from the date of
deposit of the requisition signed by the requisitionists, and if the Board
of Directors does not convene such meeting within such sixty (60) day
period, the requisitionists themselves may convene the general meeting in
the same manner, as nearly as possible, as that in which general meetings
may be convened by the Board of Directors, and all reasonable expenses
incurred by the requisitionists as a result of the failure of the Board of
Directors to convene the general meeting shall be reimbursed to them by
the Company.
NOTICE OF GENERAL MEETINGS
56. At least ten (10) days notice shall be given of any general meeting. Every
notice shall be exclusive of the day on which it is given or deemed to be
given and of the day for which it is given and shall specify such details
as are required by applicable law or the relevant code, rules and
regulations applicable to the listing of the Shares on the Exchange.
57. A general meeting shall, whether or not the notice specified in these
Articles has been given and whether or not the provisions of the Articles
regarding general meetings have been complied with, be deemed to have been
duly convened if applicable law so permits and it is so agreed:
(a) in the case of a general meeting called as an annual general meeting
by all the Shareholders entitled to attend and vote thereat or their
proxies; and
(b) in the case of any other general meeting by such number of the
Shareholders having a right to attend and vote at the meeting and
holding, whether directly or by proxy, not less than two-thirds of
the votes entitled to be cast at such general meeting.
58. The notice convening an annual general meeting shall specify the meeting
as such, and the notice convening a meeting to pass a Special Resolution
shall specify the intention to propose a resolution as a special
resolution. Notice of every general meeting shall be given to all
Shareholders other than such as, under the provisions of these Articles or
the terms of issue of the Shares they hold, are not entitled to receive
such notice from the Company.
59. There shall appear with reasonable prominence in every notice of general
meetings of the Company a statement that a Shareholder entitled to attend
and vote is entitled to appoint a proxy to attend and vote instead of him
and that a proxy need not be a Shareholder.
60. The accidental omission to give notice of a general meeting to, or the
non-receipt of notice of a meeting by, any person entitled to receive
notice shall not invalidate the proceedings of that meeting.
61. In cases where instruments of proxy are sent out with notices, the
accidental omission to send such instrument of proxy to, or the
non-receipt of such instrument of proxy by, any person entitled to receive
notice shall not invalidate any resolution passed or any proceeding at any
such meeting.
PROCEEDINGS AT GENERAL MEETINGS
62. All business carried out at a general meeting shall be deemed special with
the exception of the consideration of the accounts and balance sheets and
any report of the Board of Directors or of the Company's auditors and the
appointment of Directors. No special business shall be transacted at any
15
general meeting without the consent of all Shareholders entitled to
receive notice of that meeting unless notice of such special business has
been given in the notice convening that meeting.
63. No business shall be transacted at any general meeting unless a quorum of
Shareholders is present at the time when the meeting proceeds to business.
Save as otherwise provided by these Articles, one or more Shareholders
holding Shares having at least a majority of the votes eligible to be cast
at such general meeting, present in person or by proxy, shall be a quorum.
64. If the Board of Directors wish to make this facility available to
Shareholders for a specific or all general meetings of the Company, a
Shareholder may participate in any general meeting of the Company, by
means of a telephone or similar communication equipment by way of which
all persons participating in such meeting can hear each other and such
participation shall be deemed to constitute presence in person at the
meeting.
65. The chairman, if any, of the Board of Directors, and, if the chairman is
not present, the Vice Chairman or such other officer as the Board of
Directors shall designate, shall preside as chairman at every general
meeting of the Company.
66. The chairman may adjourn a general meeting from time to time and from
place to place, but no business shall be transacted at any adjourned
meeting other than the business left unfinished at the meeting from which
the adjournment took place. When a meeting is adjourned for fourteen (14)
days or more, notice of the adjourned meeting shall be given as in the
case of an original meeting. Save as aforesaid it shall not be necessary
to give any notice of an adjournment or of the business to be transacted
at an adjourned meeting.
67. At any general meeting a resolution put to the vote of the meeting shall
be decided on a poll.
68. In the case of an equality of votes, the chairman of the meeting shall be
entitled to a second or casting vote.
69. If authorized by the Board of Directors, any vote taken by written ballot
may be satisfied by a ballot submitted by electronic transmission;
provided that any such electronic transmission must either set forth or be
submitted with information from which it can be determined that the
electronic transmission was authorized by the Shareholder or proxy.
VOTES OF SHAREHOLDERS
70. Subject to any rights and restrictions for the time being attached to any
class or classes of Shares and the provisions of Article 19, every
Shareholder present in person and every person representing a Shareholder
by proxy at any general meeting shall have such number of votes with
respect to such Shares that such holder or the person represented by proxy
holds is entitled by the terms of issue of such Shares.
71. In the case of joint holders of Shares, the vote of the senior holder that
tenders a vote whether in person or by proxy shall be accepted to the
exclusion of the votes of the joint holders and for this purpose seniority
shall be determined by the order in which the names stand in the Register
of Members.
72. A Shareholder of unsound mind, or in respect of whom an order has been
made by any court having jurisdiction in lunacy, may vote, by his
committee, or other person in the nature of a committee appointed by that
court, and any such committee or other person may vote by proxy.
73. Votes may be given either personally or by proxy.
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74. The instrument appointing a proxy shall be in writing and shall be
executed under the hand of the appointor or his attorney duly authorized
in writing, or, if the appointor is a corporation or other entity, either
under its common seal or under the hand of an officer or attorney so
authorised; provided, a Shareholder may also authorize the casting of a
vote by proxy pursuant to telephonic or electronically transmitted
instructions (including, without limitation, instructions transmitted over
the Internet) obtained pursuant to procedures approved by the Board of
Directors that are reasonably designed to verify that such instructions
have been authorized by such Shareholder.
75. A resolution in writing signed by all the Shareholders for the time being
entitled to receive notice of and to attend and vote at general meetings
(or being corporations by their duly authorised 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.
CORPORATIONS AND OTHER ENTITIES ACTING BY REPRESENTATIVES AT MEETINGS
76. Any corporation or other entity that is a Shareholder may by resolution of
its directors or other governing body authorise such person as it thinks
fit to act as its representative at any meeting of the Company or of any
class of Shareholders, and the person so authorised shall be entitled to
exercise the same powers on behalf of the corporation that he represents
as that corporation could exercise if it were an individual Shareholder.
DIRECTORS
77. The name of the first Director(s) shall either be determined in writing by
a majority (or in the case of a sole subscriber that subscriber) of, or
appointed at a meeting of, the subscribers of the Memorandum of
Association.
78. The Company may by resolution passed by a plurality of the votes cast by
Shareholders as such Shareholders being entitled to do so, vote in person
or, where proxies are allowed, by proxy at a general meeting of the
Company and where a poll is taken regard shall be had in computing a
majority to the number of votes to which each Shareholder is entitled,
appoint any person to be a Director.
79. Subject to the provisions of these Articles, a Director shall hold office
until the next general meeting of the Company at which Directors are to be
appointed and such Director's successor is appointed or such time as he is
removed from office in accordance with the terms of these Articles.
80. The Board of Directors may from time to time fix the maximum and minimum
number of Directors to be appointed but unless such number is fixed as
aforesaid the number of Directors shall be eleven.
81. The remuneration of the Directors shall be determined by the Board of
Directors.
82. There shall be no Shareholding qualification for Directors.
83. The Board of Directors shall have power at any time and from time to time
to appoint a person as Director, either as a result of a casual vacancy or
as an additional Director; provided, however, that such Director so
appointed shall be approved or terminated by a resolution of the
Shareholders at the next general meeting.
POWERS AND DUTIES OF DIRECTORS
84. Subject to the provisions of the Companies Law and these Articles, the
business of the Company shall be managed by the Board of Directors, which
may pay all expenses incurred in setting up and registering the Company.
The Board of Directors may exercise all powers of the Company in
accordance with the provisions of Article 98. No resolution made by the
Company in general meeting
17
shall invalidate any prior act of the Board of Directors that would have
been valid if that resolution had not been made.
85. The Board of Directors may from time to time appoint any person,
whether or not a Director, to hold such office in the Company as the
Board of Directors may think necessary for the administration of the
Company, including but not limited to, the offices of chief
executive officer and president, one or more vice-presidents, chief
financial officer, treasurer, assistant treasurer, manager or
controller, and for such term and at such remuneration (whether by
way of salary or commission or participation in profits or partly in
one way and partly in another), and with such powers and duties as
the Board of Directors may think fit. Any person so appointed by the
Board of Directors may be removed by the Board of Directors.
86. The Board of Directors may appoint a Secretary (and if need be an
Assistant Secretary or Assistant Secretaries) who shall hold office for
such term, at such remuneration and upon such conditions and with such
powers as it thinks fit. Any Secretary or Assistant Secretary so appointed
by the Board of Directors may be removed by the Board of Directors.
87. The Board of Directors may delegate any of its powers to committees
consisting of such Director or Directors of its body as it thinks fit; any
committee so formed shall in the exercise of the powers so delegated
conform to any regulations that may be imposed on it by the Board of
Directors.
88. The Board of Directors may from time to time and at any time by power of
attorney appoint any company, firm or person or body of persons, whether
nominated directly or indirectly by the Directors, to be the attorney or
attorneys of the Company for such purposes and with such powers,
authorities and discretion (not exceeding those vested in or exercisable
by the Board of Directors under these Articles) 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 of Directors may think
fit, and may also authorise any such attorney to delegate all or any of
the powers, authorities and discretion vested in him.
89. The Board of Directors may from time to time provide for the management of
the affairs of the Company in such manner as it shall think fit and the
provisions contained in Articles 90 through 92 (inclusive) shall not limit
the general powers conferred by this Article 89.
90. The Board of Directors from time to time and at any time may establish any
committees, local boards or agencies for managing any of the affairs of
the Company and may appoint any persons to be members of such committees
or local boards and may appoint any managers or agents of the Company and
may fix the remuneration of any such persons.
91. The Board of Directors from time to time and at any time may delegate to
any such committee, local board, manager or agent any of the powers,
authorities and discretions for the time being vested in the Board of
Directors and may authorise the members for the time being of any such
local board, or any of them to fill any vacancies therein and to act
notwithstanding vacancies and any such appointment or delegation may be
made on such terms and subject to such conditions as the Board of
Directors may think fit and the Board of Directors may at any time remove
any person so appointed and may annul or vary any such delegation, but no
person dealing in good faith and without notice of any such annulment or
variation shall be affected thereby.
92. Any such delegates as aforesaid may be authorised by the Board of
Directors to subdelegate all or any of the powers, authorities, and
discretion for the time being vested in them.
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BORROWING POWERS OF DIRECTORS
93. The Board of Directors may 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, to issue debentures, notes and other
securities whenever money is borrowed or as security for any debt,
liability or obligation of the Company or of any third party.
THE SEAL
94. The Seal shall not be affixed to any instrument except by the authority of
a resolution of the Board of Directors; provided always that such
authority may be given prior to or after the affixing of the Seal and if
given after may be in general form confirming a number of affixings of the
Seal. The Seal shall be affixed in the presence of a Director or a
Secretary (or an Assistant Secretary) or in the presence of any one or
more persons as the Board of Directors may appoint for the purpose and
every person as aforesaid shall sign every instrument to which the Seal is
so affixed in their presence.
95. The Company may maintain a facsimile of the Seal in such countries or
places as the Board of Directors may appoint and such facsimile Seal shall
not be affixed to any instrument except by the authority of a resolution
of the Board of Directors; provided always that such authority may be
given prior to or after the affixing of such facsimile Seal and if given
after may be in general form confirming a number of affixings of such
facsimile Seal. The facsimile Seal shall be affixed in the presence of
such person or persons as the Board of Directors shall for this purpose
appoint and such person or persons as aforesaid shall sign every
instrument to which the facsimile Seal is so affixed in their presence and
such affixing of the facsimile Seal and signing as aforesaid shall have
the same meaning and effect as if the Seal had been affixed in the
presence of and the instrument signed by a Director or a Secretary (or an
Assistant Secretary) or in the presence of any one or more persons as the
Board of Directors may appoint for the purpose.
96. Notwithstanding the foregoing, a Secretary or any Assistant Secretary
shall have the authority to affix the Seal, or the facsimile Seal, to any
instrument for the purposes of attesting authenticity of the matter
contained therein but that does not create any obligation binding on the
Company.
DISQUALIFICATION OF DIRECTORS
97. The office of a Director shall be vacated and such Director removed from
the Board of Directors, if the Director:
(a) becomes bankrupt or makes any arrangement or composition with his
creditors;
(b) is found to be or becomes of unsound mind;
(c) resigns his office by notice in writing to the Company; or
(d) is removed from office by Ordinary Resolution.
PROCEEDINGS OF DIRECTORS
98. The Directors may meet together (either within or without the Cayman
Islands) for the despatch of business, adjourn and otherwise regulate
their meetings and proceedings as they shall think fit. Questions arising
at any meeting shall be decided by a majority of votes cast thereat. In
case of an equality of votes the chairman shall have a second or casting
vote. The Chairman may, and a Secretary or Assistant Secretary on the
requisition of a majority of the Directors shall, at any time summon a
meeting of the Board of Directors by at least two days' notice in writing
to every Director, which notice shall set forth the general nature of the
business to be considered unless notice is waived by all the Directors
either at, before or after the meeting is
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held. No additional notice of a regularly scheduled meeting of the Board
of Directors shall be required. Notice of any special meeting of the Board
of Directors shall be given by the Secretary or Assistant Secretary of the
Company at least one day prior to such meeting. Such notice requirements
shall be waived by any Director actually attending such meeting.
99. Without prejudice to the powers conferred by these Articles, the Board of
Directors may delegate any of its powers to committees consisting of such
Director or Directors as it thinks fit. Any committee so formed shall, in
the exercise of the powers so delegated, conform to any regulations that
may be imposed on it by the Board of Directors.
100. The meetings and proceedings of any such committee consisting of two or
more Directors shall be governed by the provisions of these Articles
regulating the meetings and proceedings of the Board of Directors so far
as the same are applicable and are not superseded by any regulations made
by the Board of Directors under the last preceding Article.
101. All acts done by any meeting of the Board of Directors, or of a committee
of the Board of Directors or by any person acting as a Director, shall,
notwithstanding it be afterwards discovered that there was some defect in
the appointment of any such Director or person acting as aforesaid, or
that they or any of them were disqualified, or had vacated office, or were
not entitled to vote, be as valid as if every such person had been duly
appointed, and was qualified and had continued to be a Director and had
been entitled to vote.
102. A Director or Directors may participate in any meeting of the Board of
Directors, or of any committee appointed by the Board of Directors of
which such Director or Directors are members, by means of telephone or
similar communication equipment by way of which all persons participating
in such meeting can hear each other and such participation shall be deemed
to constitute presence in person at the meeting.
103. The quorum necessary for the transaction of the business of the Board of
Directors may be fixed by the Board of Directors, and unless so fixed,
shall be a majority of the Directors.
104. A Director who is in any way, whether directly or indirectly, interested
in a contract or proposed contract with the Company shall declare the
nature of his interest at a meeting of the Board of Directors. A general
notice given to the Board of Directors by any Director to the effect that
he is a Shareholder of any specified company or firm and is to be regarded
as interested in any contract that may thereafter be made with that
company or firm shall be deemed a sufficient declaration of interest in
regard to any contract so made. A Director may vote in respect of any
contract or proposed contract or arrangement notwithstanding that he may
be interested therein and if he does so his vote shall be counted and he
may be counted in the quorum at any meeting of the Board of Directors at
which any such contract or proposed contract or arrangement shall come
before the meeting for consideration.
105. A Director may hold any other office or place of profit under the Company
(other than the office of auditor) in conjunction with his office of
Director for such period and on such terms (as to remuneration and
otherwise) as the Board of Directors may determine and no Director or
proposed Director shall be disqualified by his office from contracting
with the Company either with regard to his tenure of any such other office
or place of profit or as vendor, purchaser or otherwise, nor shall any
such contract or arrangement entered into by or on behalf of the Company
in which any Director is in any way interested, be liable to be avoided,
nor shall any Director so contracting or being so interested be liable to
account to the Company for any profit realised by any such contract or
arrangement by reason of such Director holding that office or of the
fiduciary relation thereby established. A Director, notwithstanding his
interest, may be counted in the quorum present at any meeting of the Board
of Directors whereat he or any other Director is appointed to hold any
such office or place of profit under the Company or whereat the terms of
any such appointment are arranged and he may vote on any such appointment
or arrangement.
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106. Any Director may act by himself or his firm in a professional capacity for
the Company, and he or his firm shall be entitled to remuneration for
professional services as if he were not a Director; provided that nothing
herein contained shall authorise a Director or his firm to act as auditor
to the Company.
107. The Board of Directors shall cause minutes to be made in books or
loose-leaf folders provided for the purpose of recording:
(a) all appointments of officers made by the Board of Directors;
(b) the names of the Directors present at each meeting of the Board of
Directors and of any committee of the Board of Directors;
(c) all resolutions and proceedings at all meetings of the Company, and
of the Board of Directors and of committees of Directors.
108. When the chairman of a meeting of the Board of Directors signs the minutes
of such meeting those minutes shall be deemed to have been duly held
notwithstanding that all the Directors have not actually come together or
that there may have been a technical defect in the proceedings.
109. A resolution signed by all the Directors shall be as valid and effectual
as if it had been passed at a meeting of the Board of Directors duly
called and constituted. When signed a resolution may consist of several
documents each signed by one or more of the Directors.
110. The continuing Directors may act notwithstanding any vacancy in their body
but if and so long as their number is reduced below the number fixed by or
pursuant to these Articles as the necessary quorum of Directors, the
continuing Directors may act for the purpose of increasing the number, or
of summoning a general meeting of the Company, but for no other purpose.
111. The Board of Directors may elect a chairman and one or more vice chairman
of their meetings and determine the period for which he is to hold office
but if no such chairman or vice chairman are elected, or if at any meeting
the chairman or any vice chairman is not present within fifteen minutes
after the time appointed for holding the meeting, the Directors present
may choose one of their number to be chairman of the meeting.
112. A committee appointed by the Board of Directors may elect a chairman of
its meetings. If no such chairman is elected, or if at any meeting the
chairman is not present within five minutes after the time appointed for
holding the meeting, the Directors present may choose one of their number
to be chairman of the meeting.
113. A committee appointed by the Board of Directors may meet and adjourn as it
thinks proper. Questions arising at any meeting shall be determined by a
majority of votes of the committee members present.
114. All acts done by any meeting of the Board of Directors or of a committee
of Directors, or by any person acting as a Director, shall notwithstanding
that it be afterwards discovered that there was some defect in the
appointment of any such Director or person acting as 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.
DIVIDENDS
115. Subject to any rights and restrictions for the time being attached to any
class or classes of Shares, the Board of Directors may from time to time
declare dividends (including interim dividends) and other distributions on
Shares in issue and authorise payment of the same out of the funds of the
Company lawfully available therefor.
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116. The Board of Directors may, before recommending or declaring any dividend,
set aside out of the funds legally available for distribution such sums as
it thinks proper as a reserve or reserves that shall, in the sole and
absolute discretion of the Board of Directors be applicable for meeting
contingencies, or for equalising dividends or for any other purpose to
which those funds may be properly applied and pending such application
may, in the sole and absolute discretion of the Board of Directors, either
be employed in the business of the Company or be invested in such
investments (other than Shares) as the Board of Directors may from time to
time think fit.
117. Any dividend may be paid by cheque sent through the post (or sent by any
electronic or other means of payment) to the registered address of the
Shareholder or person entitled thereto, or in the case of joint holders,
to any one of such joint holders at his registered address or to such
person and such address as the Shareholder or person entitled, or such
joint holders as the case may be, may direct. Every such cheque or
electronic payment shall be made payable to the order of the person to
whom it is sent or to the order of such other person as the Shareholder or
person entitled, or such joint holders as the case may be, may direct.
118. The Board of Directors when paying dividends to the Shareholders in
accordance with the provisions of these Articles may make such payment
either in cash or in specie.
119. If several persons are registered as joint holders of any Share, any of
them may give effectual receipts for any dividend or other moneys payable
on or in respect of the Share.
120. No dividend shall bear interest against the Company.
ACCOUNTS AND AUDIT
121. The books of account relating to the Company's affairs shall be kept in
such manner as may be determined from time to time by the Board of
Directors.
122. The books of account shall be kept at the registered office of the
Company, or at such other place or places as the Board of Directors may
think fit, and shall always be open to the inspection of the Board of
Directors.
123. The Board of Directors shall from time to time determine whether and to
what extent and at what times and places and under what conditions or
regulations the accounts and books of the Company or any of them shall be
open to the inspection of Shareholders not being Directors, and no
Shareholder (not being a Director) shall have any right of inspecting any
account or book or document of the Company except as conferred by law or
authorised by the Board of Directors.
124. Subject to applicable law and the rules of any Exchange on which Shares
are listed or traded, the accounts relating to the Company's affairs shall
only be audited if the Board of Directors so determines, in which case the
financial year end and the accounting principles shall be determined by
the Board of Directors.
CAPITALISATION OF PROFITS
125. Subject to applicable law, the Board of Directors may:
(a) resolve to capitalise an amount standing to the credit of reserves
(including a Share premium account, capital redemption reserve and
profit and loss account), whether or not available for distribution;
(b) appropriate the sum resolved to be capitalised to the Shareholders
in proportion to the nominal amount of Shares held by them
respectively and apply that sum on their behalf in or towards paying
up in full unissued Shares or debentures of a nominal amount equal
to
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that sum, and allot the Shares or debentures, credited as fully
paid, to the Shareholders (or as the Board of Directors may direct)
in those proportions, or partly in one way and partly in the other,
but the Share premium account, the capital redemption reserve and
profits that are not available for distribution may, for the
purposes of this Article 125, only be applied in paying up unissued
Shares to be allotted to Shareholders credited as fully paid;
(c) make any arrangements it thinks fit to resolve a difficulty arising
in the distribution of a capitalised reserve and in particular,
without limitation, where Shares or debentures become distributable
in fractions the Board of Directors may deal with the fractions as
it thinks fit;
(d) authorise a person to enter (on behalf of all the Shareholders
concerned) into an agreement with the Company providing for the
allotment to the Shareholders respectively, credited as fully paid,
of Shares or debentures to which they may be entitled on the
capitalisation and any such agreement made under this authority
being effective and binding on all those Shareholders; and
(e) generally do all acts and things required to give effect to the
resolution.
SHARE PREMIUM ACCOUNT
126. The Board of Directors shall in accordance with Section 34 of the
Companies Law establish a Share premium account and shall carry to the
credit of such account from time to time a sum equal to the amount or
value of the premium paid on the issue of any Share.
127. There shall be debited to any Share premium account on the redemption or
purchase of a Share the difference between the nominal value of such Share
and the redemption or purchase price; provided always that at the
discretion of the Board of Directors such sum may be paid out of the
profits of the Company or, if permitted by Section 37 of the Companies
Law, out of capital.
NOTICES
128. Any notice or document may be served by the Company or by the person
entitled to give notice to any Shareholder either personally, by
facsimile, email or other electronic means or by sending it through the
post in a prepaid letter or via a recognised courier service, fees
prepaid, addressed to the Shareholder at his address as appearing in the
Register of Members. In the case of joint holders of a Share, all notices
shall be given to that one of the joint holders whose name stands first in
the Register of Members in respect of the joint holding, and notice so
given shall be sufficient notice to all the joint holders.
129. Any Shareholder present, either personally or by proxy, at any meeting of
the Company shall for all purposes be deemed to have received due notice
of such meeting and, where requisite, of the purposes for which such
meeting was convened.
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130. Any notice or other document, if served by (a) post, shall be deemed to
have been served five days after the time when the letter containing the
same is posted, or, (b) facsimile, email or other electronic means shall
be deemed to have been served upon production of a report confirming
transmission to the recipient or (c) recognised courier service, shall be
deemed to have been served 48 hours after the time when the letter
containing the same is delivered to the courier service. In proving
service by post or courier service it shall be sufficient to prove that
the letter containing the notice or documents was properly addressed and
duly posted or delivered to the courier service.
131. Any notice or document delivered or sent by post to or left at the
registered address of any Shareholder in accordance with the terms of
these Articles shall notwithstanding that such Shareholder be then dead or
bankrupt, and whether or not the Company has notice of his death or
bankruptcy, be deemed to have been duly served in respect of any Share
registered in the name of such Shareholder as sole or joint holder, unless
his name shall at the time of the service of the notice or document, have
been removed from the Register of Members as the holder of the Share, and
such service shall for all purposes be deemed a sufficient service of such
notice or document on all persons interested (whether jointly with or as
claiming through or under him) in the Share.
132. Notice of every general meeting of the Company shall be given to:
(a) all Shareholders holding Shares with the right to receive notice and
who have supplied to the Company an address for the giving of
notices to them; and
(b) every person entitled to a Share in consequence of the death or
bankruptcy of a Shareholder, who but for his death or bankruptcy
would be entitled to receive notice of the meeting.
No other person shall be entitled to receive notices of general meetings.
INDEMNITY; EXCULPATION
133. The Company shall indemnify, except in respect of wilful default or fraud,
to the full extent now or hereafter permitted by law, any person
(including his heirs, executors and administrators) who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including, without limitation, an action
by or in the right of the Company), by reason of his acting as, or having
in the past acted as, a Director, or officer, or is or was acting for, on
behalf of or at the request of, the Company as a director, officer
employee or agent of another company, partnership, joint venture, trust or
other enterprise, or in a fiduciary or other capacity with respect to any
employee benefit plan maintained by the company) against any expense
(including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person (or his heirs,
executors and administrators) in respect thereof. The Company shall
advance the expenses of defending any such action, suit or proceeding
(including appeals) in accordance with and to the full extent now or
hereafter permitted by law. Without limiting the generality or the effect
of the foregoing, the Company may enter into one or more agreements with
any person that provide for indemnification greater or different than that
provided in this Article 133. Any amendment or repeal of this Article 133
shall not adversely affect any right or protection existing hereunder
immediately prior to such amendment or repeal.
134. The Board of Directors may, notwithstanding any interest of the Directors
in such action, authorize the Company to purchase and maintain insurance
on behalf of any person described in Article 133 against any liability
asserted against him and incurred by such person in any such capacity, or
arising out of such person's status as such, whether or not the Company
would have the power to indemnify such person against such liability under
the provisions of these Articles.
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135. The provisions of these Articles shall be applicable to all actions,
claims, suits or proceedings made or commenced after the adoption of these
Articles, whether arising from acts or omissions to act occurring before
or after such adoption. The provisions of these Articles shall be deemed
to be a contract between the Company and each person described in Article
133 who serves in such capacity at any time while these Articles and the
relevant provisions of the law, if any, are in effect, and any repeal or
modification thereof shall not affect any rights or obligations then
existing with respect to any state of facts or any action, suit or
proceeding then or theretofore existing, or any action, suit or proceeding
thereafter brought or threatened based in whole or in part on any such
state of facts.
136. If any provision of these Articles shall be found to be invalid or limited
in application by reason of any law or regulation, it shall not affect any
other application of such provision or the validity of the remaining
provisions of these Articles. The rights of indemnification and
advancement of expenses provided in these Articles shall neither be
exclusive of, nor be deemed in limitation of, any rights to which any such
person described in Article 133 may otherwise be entitled or permitted by
contract, Ordinary Resolution, action of the Board of Directors or
otherwise, or as a matter of law, both as to actions in his official
capacity and actions in any other capacity while holding such office, it
being the policy of the Company that indemnification of the specified
individuals, except in respect of wilful default or fraud, shall be made
to the fullest extent permitted by law.
137. A Director shall not be personally liable to the Company or its
Shareholders for monetary damages for breach of fiduciary duty as a
Director, except for liability (a) for any breach of the Director's duty
of loyalty to the Company or its Shareholders, (b) for acts or omissions
not in good faith or that involve intentional misconduct or a knowing
violation of law, or (c) for any transaction from which the Director
derived an improper personal benefit. Any amendment or repeal of this
Article 137 shall not adversely affect any right or protection of a
Director existing immediately prior to such amendment or repeal. The
liability of a director shall be further eliminated or limited to the full
extent permitted by applicable law, as it may hereafter be amended.
INDEMNITY FROM TAX LIABILITY RESULTING FROM ACTS OF SHAREHOLDERS
138. Whenever any law for the time being of any country, state or place imposes
or purports to impose any immediate or future or possible liability upon
the Company to make any payment or empowers any government or taxing
authority or government official to require the Company to make any
payment in respect of any Shares registered in the Register of Members as
held either jointly or solely by any Shareholder or in respect of any
dividends, bonuses or other monies due or payable or accruing due or that
may become due or payable to such Shareholder by the Company on or in
respect of any Shares registered as aforesaid or for or on account of in
respect of any Shareholder and whether in consequence of (a) the death of
such Shareholder, (b) the non-payment of any income tax or other tax by
such Shareholder, (c) the non-payment of any estate, probate, succession,
death, stamp, or other duty by the executor or administrator of such
Shareholder or by or out of his estate, or (d) any other act or thing, in
every such case (except to the extent that the rights conferred upon
holders of any class of Shares render the Company liable to make
additional payments in respect of sums withheld on account of the
foregoing):
(i) the Company shall be fully indemnified by such Shareholder or his
executor or administrator from all liability;
(ii) the Company shall have a lien upon all dividends and other monies
payable in respect of the Shares registered in the Register of
Members as held either jointly or solely by such Shareholder for all
monies paid or payable by the Company in respect of such Shares or
in respect of any dividends or other monies as aforesaid thereon or
for or on account or in respect of such Shareholder under or in
consequence of any such law together with interest thereon (at a
rate not exceeding that permissible under applicable law) from the
date of payment to the date of repayment and may deduct or set off
against such dividends or other
25
monies payable as aforesaid any monies paid or payable by the Company as
aforesaid together with interest as aforesaid;
(iii) the Company may recover as a debt due from such Shareholder or his
executor or administrator wherever constituted any monies paid by
the Company under or in consequence of any such law and interest
thereon at the rate and for the period aforesaid in excess of any
dividends or other monies as aforesaid then due or payable by the
Company; and
(iv) the Company may, if any such money is paid or payable by it under
any such law as aforesaid, refuse to register a transfer of any
shares by any such Shareholder or his executor or administrator
until such money and interest as aforesaid is set off or deducted as
aforesaid, or in case the same exceeds the amount of any such
dividends or other monies as aforesaid then due or payable by the
Company, until such excess is paid to the Company.
Subject to the rights conferred upon the holders of any class of Shares,
nothing herein contained shall prejudice or affect any right or remedy
that any law may confer or purport to confer on the Company and as between
the Company and every such Shareholder as aforesaid, his estate
representative, executor, administrator and estate wheresoever constituted
or situate, any right or remedy that such law shall confer or purport to
confer on the Company shall be enforceable by the Company.
CERTAIN SUBSIDIARIES
139. Notwithstanding any other provision of these Articles to the contrary, if
the Company is required or entitled to vote at a general meeting of any
non-U.S. direct subsidiary of the Company, the Board of Directors shall
refer the subject matter of the vote to the Shareholders of the Company at
a general meeting (subject to Article 19) and seek authority from the
Shareholders for the Company's corporate representative or proxy to vote
in favour of the resolution proposed by the subsidiary. The Board of
Directors shall cause the Company's corporate representative or proxy to
vote the Company's shares in the subsidiary pro rata to the votes received
at the general meeting of the Company, with votes for or against the
directing resolution being taken, respectively, as an instruction for the
Company's corporate representative or proxy to vote the appropriate
proportion of its shares for and the appropriate proportion of its shares
against the resolution proposed by the subsidiary; provided, however, that
the foregoing shall not apply to any subject matter regarding a U.S.
indirect subsidiary of the Company that is required to be voted on by a
non-U.S. subsidiary of the Company as the shareholder of such U.S.
subsidiary.
140. The Board of Directors in its sole and absolute discretion shall require
that the Bye-laws or Articles of Association, or similar organizational
documents, of each subsidiary of the Company organized under the laws of a
jurisdiction outside the United States of America shall contain provisions
substantially similar to Articles 139 and 140. The Company shall enter
into agreements with each such subsidiary, as reasonably necessary, to
effectuate or implement this Article 140.
NON-RECOGNITION OF TRUSTS
141. No person shall be recognised by the Company as holding any Share upon any
trust and the Company shall not, unless required by law, be bound by or be
compelled in any way to recognise (even when having notice thereof) any
equitable, contingent or future interest in any of its Shares or any other
rights in respect thereof except an absolute right to the entirety thereof
in each Shareholder registered in the Register of Members.
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WINDING UP
142. In the event of any liquidation, dissolution or winding up, holders of
Common Shares shall be entitled to receive distributions in proportion to
the number of Common Shares held by such holder, without regard to class.
143. If the Company shall be wound up the liquidator may, subject to the
preferences and priorities of the shares issued in the capital of the
Company, with the sanction of an Ordinary Resolution of the Company divide
amongst the Shareholders in specie or kind the whole or any part of the
assets of the Company (whether such assets 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 Shareholders or
different classes of Shares. The liquidator may, with the like sanction,
vest the whole or any part of such assets in trustees upon such trusts for
the benefit of the contributories as the liquidator, with the like
sanction, shall think fit, but so that no Shareholder shall be compelled
to accept any Shares or other securities whereon there is any liability.
AMENDMENT OF ARTICLES OF ASSOCIATION
144. Subject to the Companies Law and the rights attaching to the various
classes of Shares, the Company may at any time and from time to time by
Special Resolution alter or amend these Articles in whole or in part.
REGISTRATION BY WAY OF CONTINUATION
145. The Company may by Special Resolution resolve to be registered by way of
continuation in a jurisdiction outside the Cayman Islands or such other
jurisdiction in which it is for the time being incorporated, registered or
existing. In furtherance of a resolution adopted pursuant to this Article
145, the Board of Directors may cause an application to be made to the
Registrar of Companies to deregister the Company in the Cayman Islands or
such other jurisdiction in which it is for the time being incorporated,
registered or existing and may cause all such further steps as it
considers appropriate to be taken to effect the transfer by way of
continuation of the Company.
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