EXHIBIT 4.1
Cumulative Redeemable Preferred Shares
WHEREAS, the Board of Directors of the Company has authorized the issuance
from time to time of securities of the Company or certain of its subsidiaries
(including Ordinary Shares, Preferred Shares, Debt Securities, Trust Preferred
Securities, Guaranties and Warrants and Manditorily Convertible Securities (each
as defined in the Resolutions of the Board of Directors of the Company (the
"March Board Resolutions") adopted at the Meeting of the Board of Directors held
on March 1, 2002)) in an aggregate amount of U.S. $1,500,000,000 at such times
and on such terms as the Executive Committee may determine.
WHEREAS, the Company has been authorized by the Board of Directors pursuant
to the Resolutions of the Board of Directors of the Company (the "February Board
Resolutions") adopted at the Meeting of the Board of Directors held on February
27, 2003, to issue and sell up to $575,000,000 of Securities of the Company, and
has delegated to the Chairman and Chief Executive Officer the authority of the
Executive Committee granted to it under the March Board Resolutions with respect
to such issuance and sale.
WHEREAS, all of the authority granted to the Executive Committee of the
Board of Directors of the Company under the March Board Resolutions has been
delegated to Brian Duperreault, Peter Menikoff and Phillip Bancroft, pursuant to
the February Board Resolutions, who have the authority to approve, among other
things, the type of security or securities to be issued and sold, the time at
which such Securities shall be sold and any other terms with respect to the
offering of the Securities not inconsistent with the Board Resolutions, any such
action to be memorialized in a resolution which shall be placed in the minute
book of the Board of Directors of the Company; provided that any such authority
with respect to the issuance of preferred stock of the Company shall be
delegated to Messrs. Duperreault and Menikoff acting as a committee of the Board
of Directors (the "Preferred Stock Committee").
NOW THERFORE BE IT:
1. RESOLVED that, a class of Other Shares in the capital of the Company be
designated as "Cumulative Redeemable Preferred Shares". The Cumulative
Redeemable Preferred Shares shall be cumulative redeemable preferred shares and,
subject to the Articles and the provisions of and restrictions contained in the
Companies Law (2002 Revision) and every statutory modification or re-enactment
thereof for the time being in force (the "Law"), shall have the following
preferences and rights and shall be subject to the following restrictions:
(a) Liquidation Preference. On any voluntary or involuntary liquidation,
dissolution or winding-up of the affairs of the Company, the assets of the
Company legally available for distribution among shareholders shall be
applied first in repaying to the holders of the Cumulative Redeemable
Preferred Shares (the "Holders") an amount equal to US$250.00 per
Cumulative Redeemable Preferred Share (inclusive of the nominal amount
thereof) plus all accrued and unpaid dividends (whether or not earned or
declared), if any, to the date fixed for distribution, in preference to the
repayment of such nominal amount of and any share premium or other amounts
paid on the ordinary shares (the "Ordinary Shares") or any other shares
ranking junior in right of payment to the Cumulative Redeemable Preferred
Shares as to the voluntary or involuntary liquidation, dissolution or
winding-up
of the affairs of the Company or as to dividends (including the Ordinary
Shares, the "Junior Shares") to the holders of such Junior Shares, without
interest on such unpaid dividends. In the event that upon any such
voluntary or involuntary liquidation, dissolution or winding-up, the assets
of the Company available are insufficient to pay the amount of the
liquidation distributions on all outstanding Cumulative Redeemable
Preferred Shares as referred to above and the corresponding amounts payable
on all other shares ranking pari passu with the Cumulative Redeemable
Preferred Shares with respect to the payment of dividends and amounts upon
any voluntary or involuntary liquidation, dissolution or winding-up of the
affairs of the Company (including, without limitation, the Series A
Preferred Shares) ("Parity Shares"), then the holders of the Cumulative
Redeemable Preferred Shares and all such Parity Shares shall share ratably
in such distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be respectively entitled. The
Cumulative Redeemable Preferred Shares shall not be convertible into or
exchangeable for any other shares of the Company.
(b) Dividend Rights.
(i) The holders of the Cumulative Redeemable Preferred Shares shall be entitled
to receive cumulative preferential cash dividends in respect of their
Cumulative Redeemable Preferred Shares at the percentage rate per annum on
their liquidation value specified by the Attorneys (as defined below) (or
by either of them) on the date of pricing of such shares (the "Pricing
Date"). Such dividends shall be payable in arrears in equal amounts (except
as set forth below with respect to the initial dividend period) on March
1st, June 1st, September 1st and December 1st when, as and if declared by
the Directors in each year or, if such date is not a day on which banks are
authorised to open for business in New York and Bermuda (a "Business Day"),
on the Business Day immediately after such date. Such dividends will begin
to accrue and will be cumulative from the date of original issuance. The
first dividend, which if declared will be payable on September 1, 2003,
will represent the period of time from and will accrue from the date of
original issuance up to August 31, 2003. The dividend for such initial
period and any other dividend payable on the Cumulative Redeemable
Preferred Shares for any partial dividend period shall be computed on the
basis of a 360-day year consisting of twelve (12) 30-day months. Dividends
will be payable to holders of record as they appear in the Company's
register of members at the close of business on the applicable record date,
which will be one day prior to the dividend payment date as long as all of
the Cumulative Redeemable Preferred Shares remain in book-entry form. If
any of the Cumulative Redeemable Preferred Shares are not in book-entry
form, the record date will be 15 days prior to the dividend payment date
(whether or not such date is a Business Day). Holders of Cumulative
Redeemable Preferred Shares will not be entitled to any dividends in excess
of full cumulative dividends as described above. Dividends on the
Cumulative Redeemable Preferred Shares will accrue and will be fully
cumulative, whether or not there are funds legally available for the
payment of such dividends and whether or not the dividends are declared. No
interest or sum of money in lieu of interest will be payable on any
dividend payment or on any payment on Cumulative Redeemable Preferred
Shares which is in arrears. Any dividend payment made on Cumulative
Redeemable Preferred Shares will first be credited against the earliest
accrued but unpaid dividend due with respect to Cumulative Redeemable
Preferred Shares which remains payable. No
dividends on the Cumulative Redeemable Preferred Shares will be declared
if prohibited by law or regulation.
(ii) As long as any Cumulative Redeemable Preferred Shares are outstanding, no
dividends or other distributions may be declared or paid or set apart for
payment on any class or series of Parity Shares for any period unless
either (1) full cumulative dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payments on the Cumulative Redeemable Preferred Shares
for all dividend periods terminating on or prior to the dividend payment
date on such Parity Shares, or (2) all dividends declared upon the
Cumulative Redeemable Preferred Shares and any Parity Shares are declared
pro rata so that the amount of dividends declared per share on the
Cumulative Redeemable Preferred Shares and any Parity Shares will in all
cases bear to each other the same ratio that accrued and unpaid dividends
per share on the Cumulative Redeemable Preferred Shares and such Parity
Shares bear to each other.
(iii) As long as any Cumulative Redeemable Preferred Shares are outstanding (1)
no dividends (other than those paid in ordinary shares or other shares
ranking junior in right of payment to the Cumulative Redeemable Preferred
Shares as to dividends and as to any voluntary or involuntary distribution
of assets on liquidation, dissolution or winding-up of the affairs of the
Company (including the ordinary shares, "Fully Junior Shares")) may be
declared or paid or set apart for payment upon any Junior Shares, (2) no
other distribution (other than those paid in Fully Junior Shares) may be
declared or paid or set apart for payment upon any Junior Shares and (3)
no Junior Shares will be redeemed, purchased or otherwise acquired (other
than a redemption, purchase or other acquisition of ordinary shares made
for purposes of any employee incentive, stock, benefit or any similar plan
of the Company or any of its subsidiaries) for any consideration (or any
moneys be paid to or made available for a sinking fund or the redemption
of any Junior Shares) by the Company (except by conversion into or
exchange for Fully Junior Shares), unless, in any such case, full
cumulative dividends on the Cumulative Redeemable Preferred Shares and any
Parity Shares have been or contemporaneously are declared and paid, or
declared and a sum sufficient for the payment thereof set apart for
payment, for all dividend periods terminating on or prior to the date such
dividends or distributions are declared or paid on the Junior Shares, or
such Junior Shares are redeemed, purchased or otherwise acquired.
(c) Voting Rights.
(i) Subject to clause (iii) below, and unless required by law or court order,
the holders of Cumulative Redeemable Preferred Shares shall not be
entitled to receive notice of nor to attend nor to vote at any general
meeting of the Company.
(ii) The holders of Cumulative Redeemable Preferred Shares shall be entitled to
one vote for each share held at any separate general meeting of that class
(i.e., Cumulative Redeemable Preferred Shares). Subject to the applicable
provisions of the Articles and the Law, unless the Cumulative Redeemable
Preferred Shares have been previously redeemed or called for redemption
(and funds necessary for such redemption have been
set apart by the Company in trust for the benefit of the holders of the
Cumulative Redeemable Preferred Shares so called for redemption), the
Company may not take any action which would vary the rights attached to
the Cumulative Redeemable Preferred Shares without the written consent of
the holders of three-fourths of the Cumulative Redeemable Preferred Shares
or the sanction of a special resolution passed by two-thirds of the votes
cast at a general meeting of the holders of the Cumulative Redeemable
Preferred Shares. At every separate meeting of the holders of the
Cumulative Redeemable Preferred Shares, the necessary quorum shall be any
one or more persons present in person or by proxy holding not less than
one-third of the issued shares of that class. Notwithstanding the
foregoing and subject to the applicable provisions of the Articles and the
Law, holders of the Cumulative Redeemable Preferred Shares are not
entitled to vote on the issuance of any shares that are in parity with the
Cumulative Redeemable Preferred Shares with respect to payment of
dividends and distribution of assets in liquidation.
(iii) If at any time the equivalent of six (6) or more full quarterly dividends
(whether consecutive or not) on the Cumulative Redeemable Preferred Shares
shall be in arrears (whether or not such dividends shall have been earned
or declared), then during such period until all such arrearages in
dividends shall have been paid in full, and only during such period (the
"Voting Period"), the holders of the Cumulative Redeemable Preferred
Shares voting together as a single class with any other series or classes
of Other Shares also in arrears and having such right shall be entitled by
ordinary resolution at a separate meeting of such holders to elect two
persons and nominate such elected persons for appointment by the Board of
Directors as additional Directors of the Company. In no event shall there
be more than two Directors elected by the holders of Other Shares (whether
voting alone as a series or class or with another series or class so in
arrears and having such right).
(iv) Any Director who shall have been elected pursuant to paragraph (2)(c)(iii)
above may be removed at any time during a Voting Period, either for or
without cause, by, and only by, ordinary resolution of the holders of the
outstanding Other Shares of the relevant series at a special separate
general meeting of such holders called for that purpose. Any vacancy
thereby created may be filled during such Voting Period by ordinary
resolution of the holders of Other Shares of all the relevant series at
such a meeting. Any Director elected by holders of Other Shares pursuant
to this provision, or by any Director so elected as herein contemplated,
who dies, resigns or otherwise ceases to be a Director during a Voting
Period shall, except as otherwise provided in the preceding sentence, be
replaced by the remaining Director theretofore elected by the holders of
Other Shares nominating a replacement for appointment by the Board of
Directors, provided that if no remaining additional Director is then in
office, additional Directors will be elected in accordance with the
procedures described above. At the end of the Voting Period, the holders
of Other Shares of all of the relevant series shall be automatically
divested of all voting powers vested in them by this provision, but
subject always to subsequent vesting of such voting power in the holders
of Other Shares in the event of any similar cumulated arrearage in payment
of quarterly dividends occurring thereafter. The term of all Directors
elected and appointed pursuant to this provision shall in all events
expire at the end of the applicable Voting Period and if the size of the
Board was increased for purpose
of the additional Directors, the number of Directors constituting the Board
shall be reduced accordingly. The provisions of the Articles relating to
general meetings shall apply, mutatis mutandis, to every such separate
meeting, except that the necessary quorum shall be any one or more persons
present in person or by proxy holding not less than fifty percent (50%) of
the issued Other Shares of the relevant series.
(d) Redemption. The Company shall be entitled to redeem all or any of the
Cumulative Redeemable Preferred Shares as follows:
(i) Subject to clauses (ii), (iii) and (iv), the Cumulative Redeemable
Preferred Shares shall not be redeemable by the Company prior to May 30,
2008, except as discussed in clauses (ii), (iii) or (iv). On or after such
date, the Company shall be entitled at any time in whole or from time to
time in part by not less than thirty (30) days nor more than sixty (60)
days prior written notice to the relevant Holders, in such form and given
in such manner as the Directors shall from time to time determine and in
accordance with paragraph (e) below, to redeem all or any of the Cumulative
Redeemable Preferred Shares pursuant to this clause for cash at a
redemption price of US$250.00 per share being redeemed (inclusive of the
nominal value thereof) plus all accrued and unpaid dividends, if any,
thereon to the date of redemption, without interest on such unpaid
dividends. Holders of the Cumulative Redeemable Preferred Shares to be
redeemed will be entitled to the redemption price following the surrender
of certificates for such shares at the price designated in the notice.
(ii) At any time prior to May 30, 2008, if the Company shall have submitted to
the holders of Ordinary Shares a proposal for an amalgamation,
consolidation, merger, arrangement, reconstruction, reincorporation,
deregistration or any other similar transaction involving the Company that
requires or shall have submitted any proposal for any other matter that, as
a result of any change in Cayman Islands Law after May 7, 2003 (whether by
enactment or official interpretation), that requires, in each case, a vote
of the holders of the Cumulative Redeemable Preferred Shares at the time
outstanding, voting separately as a single class (alone or with one or more
other classes or series of preferred shares, including the Company's Series
A Preferred Shares), the Company shall have the option by not less than
thirty (30) days nor more than sixty (60) days prior written notice to the
relevant Holders, in such form and given in such manner as the Directors
shall from time to time determine and in accordance with paragraph (e)
below, to redeem all of the outstanding Cumulative Redeemable Preferred
Shares pursuant to this clause for cash at a redemption price of US$260.00
per share being redeemed (inclusive of the nominal value thereof) plus all
accrued and unpaid dividends, if any, to the date of redemption, without
interest on such unpaid dividends.
(iii) If there is a "change in tax law" that would require the Company or any
successor company to pay additional amounts with respect to the Cumulative
Redeemable Preferred Shares on the next succeeding dividend payment date,
and the payment of those additional amounts cannot be avoided by the use of
any reasonable measures available to the Company or any successor company,
the Company shall have the option at any time thereafter by not less than
thirty (30) days nor more than sixty (60) days prior written notice to the
relevant Holders, in such form and given in such manner as the Directors
shall from time to time determine and in accordance with paragraph (e)
below, to redeem any or all Cumulative Redeemable Preferred Shares pursuant
to this clause for cash at a redemption price of US$250.00 per share being
redeemed (inclusive of the nominal value thereof) plus accrued and unpaid
dividends, if any, to the date of redemption, without interest on such
unpaid dividends. For the purposes of this provision, a "change in tax law"
shall be (a) a change in or amendment to laws, regulations or rulings of
any jurisdiction, political subdivision or taxing authority described in
the next sentence, (b) a change in the official application or
interpretation of those laws, regulations or rulings, or (c) any execution
of or amendment to any treaty affecting taxation to which any jurisdiction,
political subdivision or taxing authority described in the next sentence is
party after May 7, 2003. The jurisdictions, political subdivisions and
taxing authorities referred to in the previous sentence are (a) the Cayman
Islands or any political subdivision or governmental authority of or in the
Cayman Islands with the power to tax, (b) any jurisdiction from or through
which the Company or its paying agent is making payments on the Cumulative
Redeemable Preferred Shares or any political subdivision or governmental
authority of or in that jurisdiction with the power to tax, or (c) any
other jurisdiction in which the Company or its successor company is
organized or generally subject to taxation or any political subdivision or
governmental authority of or in that jurisdiction with the power to tax.
(iv) If the entity formed by a consolidation, merger or amalgamation involving
the Company or the entity to which the Company conveys, transfers or leases
substantially all of its properties and assets is required to pay
additional amounts in respect of any tax, assessment or governmental charge
imposed on any holder of Cumulative Redeemable Preferred Shares as a result
of a change in tax law that occurred after the date of the consolidation,
merger, amalgamation, conveyance, transfer or lease, and the payment of
those amounts cannot be avoided by the use of any reasonable measures
available to the Company or any successor company, the Company shall have
the option at any time thereafter by not less than thirty (30) days nor
more than sixty (60) days prior written notice to the relevant Holders, in
such form and given in such manner as the Directors shall from time to time
determine and in accordance with paragraph (e) below, to redeem any or all
Cumulative Redeemable Preferred Shares pursuant to this clause for cash at
a redemption price of US$250.00 per share being redeemed (inclusive of the
nominal value thereof) plus all accrued and unpaid dividends, if any, to
the date of redemption.
(e) Notice of any redemption described herein will be mailed at least thirty
(30) days but not more than sixty (60) days before the redemption date to
each holder of record of Cumulative Redeemable Preferred Shares to be
redeemed at the address shown in the register of members of the Company.
Each notice will state as appropriate: (1) the redemption date; (2) the
number of Cumulative Redeemable Preferred Shares to be redeemed; (3) the
redemption price; (4) the place or places where certificates for Cumulative
Redeemable Preferred Shares are to be surrendered for payment of the
redemption price if any such certificates are outstanding; and (5) where
applicable, that dividends on the Cumulative Redeemable Preferred Shares to
be redeemed will cease to accrue on such redemption date. If fewer than all
Cumulative Redeemable Preferred Shares are to be redeemed, the notice
mailed to each such holder thereof will also specify the number of
Cumulative Redeemable Preferred Shares to be redeemed from such
holder. The notice shall contain (i) the name and address of the relevant
bank or trust company to be used for purposes of redemption (if any) and
(ii) a statement as to the deposit or intent to deposit the redemption
funds in such trust account.
(f) If fewer than all of the outstanding Cumulative Redeemable Preferred Shares
are to be redeemed, the number of shares to be redeemed will be determined
by the Directors in their absolute discretion and such Cumulative
Redeemable Preferred Shares may be redeemed pro rata from the holders of
record in proportion to the number of Cumulative Redeemable Preferred
Shares held by such holders (with adjustments to avoid redemption of
fractional shares) or by lot.
(g) If notice of redemption of any Cumulative Redeemable Preferred Shares has
been given and if the funds necessary for such redemption have been set
apart by the Company in trust for the benefit of the holders of Cumulative
Redeemable Preferred Shares so called for redemption, then from and after
the redemption date, dividends will cease to accrue on the Cumulative
Redeemable Preferred Shares being redeemed, the Cumulative Redeemable
Preferred Shares will no longer be deemed to be outstanding and all rights
of the holders of such shares will terminate, except the right to receive
the redemption price.
(h) If a redemption date falls after a dividend record date and prior to the
corresponding dividend payment date, the holders of Cumulative Redeemable
Preferred Shares at the close of business on the dividend record date will
be entitled to receive the dividend payable with respect to such Cumulative
Redeemable Preferred Shares on the corresponding dividend payment date
notwithstanding the redemption thereof between the dividend record date and
the corresponding dividend payment date or a default in the payment of the
dividend due on such dividend payment date.
(i) Unless full cumulative dividends on all Cumulative Redeemable Preferred
Shares and all Parity Shares shall have been declared and paid, or declared
and a sum sufficient for the payment thereof set apart for payment for all
past dividend periods terminating on or prior to the date of a redemption,
purchase or other acquisition, no Cumulative Redeemable Preferred Shares or
any Parity Shares may be redeemed, purchased or otherwise acquired by the
Company unless all Cumulative Redeemable Preferred Shares and any Parity
Shares are redeemed; provided, that, the Company may acquire fewer than all
of the Cumulative Redeemable Preferred Shares or any Parity Shares pursuant
to a purchase or exchange offer made on the same terms to holders of all
Cumulative Redeemable Preferred Shares and Parity Shares as determined in
good faith by the Board of Directors of the Company.
(j) The Company, subject to (1) certain limitations contained in the Company's
Articles of Association, (2) the special rights granted to any of the
Company's issued and outstanding shares, (3) applicable law and (4) the
Company's requirement pursuant to clause (i) to make a purchase or exchange
offering on the same terms to holders of all outstanding Cumulative
Redeemable Preferred Shares and Parity Shares, may, at any time and from
time to time, purchase outstanding Cumulative Redeemable Preferred Shares.
Any such purchase made by the Company may be made in the open market, by
tender to all holders of Cumulative Redeemable Preferred Shares, by private
agreement
or otherwise as the Directors see fit. Any Cumulative Redeemable Preferred
Shares purchased by the Company for its own account (other than in the
ordinary course of business of dealing in securities) will be cancelled by
the Company and will no longer be issued and outstanding.
(k) The Cumulative Redeemable Preferred Shares may be purchased or redeemed by
the Company out of profits, from the proceeds of a fresh issue of shares
made for the purpose of the redemption or purchase, out of capital or from
the share premium account.
(l) Payment of the redemption amount shall only be effected upon surrender to
the Company for cancellation of any share certificate in respect of the
Cumulative Redeemable Preferred Shares (to the extent such certificates are
outstanding) to be redeemed and shall be made as promptly as practicable.
If any certificate so surrendered includes Cumulative Redeemable Preferred
Shares not being redeemed, a new certificate for the remaining Cumulative
Redeemable Preferred Shares shall be issued to the holder in accordance
with the Articles of Association of the Company without charge to such
holder.
(m) The Directors may make such further regulations concerning the
administerial process of redemption as they shall from time to time deem
necessary so long as the rights of the Holders are not varied.
(n) The rights conferred upon the holders of the Cumulative Redeemable
Preferred Shares shall not be deemed to be varied by the creation or issue
of any Parity Shares, Junior Shares or Fully Junior Shares.
(o) Payments of Additional Amounts. Payments on the Cumulative Redeemable
Preferred Shares shall be made free and clear of and without deduction or
withholding for or on account of any present or future taxes, assessments
or other governmental charges imposed by any jurisdiction, political
subdivision or taxing authority described in clause 1(d)(iii) of these
Resolutions, unless the deduction or withholding of such taxes, assessments
or other governmental charges is required by law, regulations or rulings or
the application or official interpretation of such law, regulations or
rulings. In that event, the Company shall pay or cause to be paid
additional amounts to the registered holders of the Cumulative Redeemable
Preferred Shares as additional dividends to make up for any deduction or
withholding for any present or future taxes, assessments or other
governmental charges imposed by any jurisdiction, political subdivision or
taxing authority described in clause 1(d)(iii) of these Resolutions in
respect of any amounts that the Company or a successor company must pay
with respect to the Cumulative Redeemable Preferred Shares, so that the net
amounts paid to the holders of the Cumulative Redeemable Preferred Shares,
after that deduction or withholding, shall equal the respective amounts
that would have been receivable by such holders had no such withholding or
deduction been required. However, the Company shall not be obligated to pay
additional amounts to any holder that:
(i) resides in or is a citizen of the jurisdiction, political subdivision or
taxing authority imposing the taxes, assessments or other governmental
charges that would otherwise
trigger the Company's obligation to pay additional amounts; or (ii) is a
fiduciary, partnership, limited liability company or other pass-thru entity
if, and to the extent that, the payment of additional amounts would be
required by a jurisdiction, political subdivision or taxing authority
described in clause 1(d)(iii) of these Resolutions to be included in the
income for tax purposes of a beneficiary or settlor with respect to that
fiduciary or a member of that partnership, limited liability company or
other pass-thru entity who would not have been entitled to any additional
amounts had that beneficiary, settlor or member held those Cumulative
Redeemable Preferred Shares directly.
In addition, the Company shall not be obligated to pay any additional
amounts to a holder of Cumulative Redeemable Preferred Shares on account of:
(i) any tax, assessment or other governmental charge that would
not have been imposed but for the existence of any present or former
connection between the holder, or certain other persons, and the
taxing jurisdiction or political subdivision, or any Cumulative
Redeemable Preferred Shares presented for payment more than thirty
(30) days after the Relevant Date; (ii) any estate, inheritance, gift,
sales, transfer, personal property or similar tax, assessment or other
governmental charge; (iii) any tax, assessment or other governmental
charge that is payable otherwise than by withholding or deduction from
payment of the liquidation preference of or any dividends on the
Cumulative Redeemable Preferred Shares; (iv) any tax, assessment or
other governmental charge that is imposed or withheld by reason of the
failure by the holder or the beneficial owner of the Cumulative
Redeemable Preferred Shares to promptly comply with a request by the
Company to (a) provide information, documents, certifications or other
evidence concerning the nationality, residence or identity of the
holder or beneficial owner or (b) make and deliver any declaration or
other similar claim, other than a claim for refund of a tax,
assessment or other governmental charge withheld by the Company, or
satisfy any information or reporting requirements, which, in the case
of clauses (a) or (b), is required or imposed by a statute, treaty,
regulation or administrative practice of the taxing jurisdiction as a
precondition to exemption from all or part of that tax, assessment or
other governmental charge; or (v) any combination of the items
identified by the subparagraphs above.
The "Relevant Date" means, in respect of any payment, the date on which
such payment first becomes due and payable, but if the full amount of the moneys
payable has not been received by the depositary on or prior to such due date, it
means the first date on which, the full amount of such moneys having been so
received and being available for payment to holders, notice to that effect shall
have been duly given to the holders of the Cumulative Redeemable Preferred
Shares.
(p) No Preemptive Rights. The Cumulative Redeemable Preferred Shares shall not
be entitled to the benefits of any retirement or sinking fund. No holder of
Cumulative Redeemable Preferred Shares, solely by reason of any such
holding, has or will have any preemptive right to subscribe for any
additional issue of the Company's shares of any class or series or to any
security convertible into any such shares.
(q) Ranking. Any class or series of shares of the Company shall be deemed to
rank (1) prior to the Cumulative Redeemable Preferred Shares, as to the
payment of dividends and as to any voluntary or involuntary return of
assets on liquidation, dissolution, winding-up or otherwise of the Company,
if the holders of such class or series shall be entitled to the receipt of
dividends or of amounts distributable upon any voluntary or involuntary
return of assets on liquidation, dissolution, winding up or otherwise, as
the case may be, in preference or priority to the holders of the Cumulative
Redeemable Preferred Shares, (2) on a parity with the Cumulative Redeemable
Preferred Shares as to the payment of dividends and as to distribution of
assets upon any voluntary or involuntary return of assets on liquidation,
dissolution, winding up or otherwise of the Company, whether or not the
dividend rates, dividend payment dates or redemption or liquidation prices
per share thereof shall be different from those of the Cumulative
Redeemable Preferred Shares, if the holders of such class or series and the
Cumulative Redeemable Preferred Shares shall be entitled to the receipt of
dividends and of amounts distributable upon any voluntary or involuntary
return of assets on liquidation, dissolution, winding up or otherwise of
the Company in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation preferences, without preference or
priority one over the other or (3) junior to the Cumulative Redeemable
Preferred Shares, as to the payment of dividends and as to distribution of
assets upon any voluntary or involuntary return of assets on liquidation,
dissolution, winding up or otherwise of the Company, if such class or
series is ordinary shares or other shares ranking junior in right of
payment to Cumulative Redeemable Preferred Shares as to dividends and/or as
to the distribution of assets upon any voluntary or involuntary return of
assets on liquidation, dissolution, winding up or otherwise of the Company.
The Cumulative Redeemable Preferred Shares will rank on a parity with the
Series A Preferred Shares as to the payment of dividends and as to
distribution of assets upon any voluntary or involuntary return of assets
on liquidation, dissolution, winding up or otherwise of the Company.