Series B Preference Ordinary Shares
1. RESOLVED that, a class of Ordinary Shares in the capital of the Company
be designated as "Series B Preference Ordinary Shares". The Series B
Preference Ordinary Shares shall be cumulative preference ordinary shares
with a nominal value of US$0.01 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 return of
assets on liquidation, dissolution, winding-up or otherwise 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 Series B Preference Ordinary Shares (the "Holders") an amount
equal to US$25.00 per Series B Preference Ordinary 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 Class A Ordinary
Shares and the Class B Ordinary Shares (together, the "Ordinary
Shares") or any other shares ranking junior in right of payment to the
Series B Preference Ordinary Shares as to the voluntary or involuntary
return of assets on liquidation, dissolution, winding-up or otherwise
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 return of assets on liquidation, dissolution,
winding-up or otherwise, the assets of the Company available are
insufficient to pay the amount of the liquidation distributions on all
outstanding Series B Preference Ordinary Shares as referred to above
and the corresponding amounts payable on all other shares ranking pari
passu with the Series B Preference Ordinary Shares with respect to the
payment of dividends and amounts upon any voluntary or involuntary
return of assets on liquidation, dissolution, winding-up or otherwise
of the Company (including, without limitation, the Series A Preference
Ordinary Shares) ("Parity Shares"), then the holders of the Series B
Preference Ordinary Shares and all such Parity Shares shall share
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ratably in such distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be
respectively entitled. The Series B Preference Ordinary Shares shall
not be convertible into or exchangeable for any other shares of the
Company.
(b) Dividend Rights. (i) The holders of the Series B Preference
Ordinary Shares shall be entitled to receive cumulative preferential
cash dividends in respect of their Series B Preference Ordinary 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 31st March, 30th June, 30th
September and 31st December when 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 31
March 2003, will represent the period of time from and will accrue
from the date of original issuance up to 31 March 2003. The
dividend for such initial period and any other dividend payable on the
Series B Preference Ordinary 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 Series B Preference
Ordinary Shares remain in book-entry form. If any of the Series B
Preference Ordinary 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 Series B Preference Ordinary
Shares will not be entitled to any dividends in excess of full
cumulative dividends as described above. Dividends on the Series B
Preference Ordinary 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
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payment or on any payment on Series B Preference Ordinary Shares which
is in arrears. Any dividend payment made on Series B Preference
Ordinary Shares will first be credited against the earliest accrued
but unpaid dividend due with respect to Series B Preference Ordinary
Shares which remains payable.
(ii) As long as any Series B Preference Ordinary 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
Series B Preference Ordinary 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 Series B Preference
Ordinary Shares and any Parity Shares are declared pro rata so that
the amount of dividends declared per share on the Series B Preference
Ordinary 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 Series B Preference Ordinary Shares and such Parity Shares bear to
each other.
(iii) As long as any Series B Preference Ordinary Shares are
outstanding (1) no dividends (other than those paid in Ordinary Shares
or other shares ranking junior in right of payment to the Series B
Preference Ordinary Shares as to dividends and as to any voluntary or
involuntary return of assets on liquidation, dissolution, winding-up
or otherwise 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 Series B Preference Ordinary Shares and any Parity
Shares have
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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 Series B Preference Ordinary 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 Series B Preference Ordinary Shares shall be
entitled to one vote for each share held at any separate general
meeting of that class or series (i.e., preference ordinary shares or
Series B Preference Ordinary Shares, respectively), subject to the
provisions of Article 41 of the Articles. Subject to the applicable
provisions of the Articles and the Law, unless the Series B Preference
Ordinary 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 Series B
Preference Ordinary Shares so called for redemption), the Company may
not take any action which would vary the rights attached to the Series
B Preference Ordinary Shares and no class or series of shares may be
created which ranks senior to the Series B Preference Ordinary Shares
as to dividend rights or as to the return of assets on liquidation,
dissolution, winding up or otherwise of the Company, in each case,
without the approval of a special resolution in writing by the holders
of 100% of the Series B Preference Ordinary Shares or the sanction of
a special resolution passed by the votes of at least two-thirds of the
outstanding Series B Preference Ordinary Shares cast at a separate
general meeting of the holders of the Series B Preference Ordinary
Shares. At every separate meeting of the holders of the Series B
Preference Ordinary Shares, the necessary quorum shall be any one or
more persons present in person or by proxy holding not less than 50%
of the issued shares of that class. Notwithstanding the foregoing and
subject to the applicable
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provisions of the Articles and the Law, holders of the Series B
Preference Ordinary Shares are not entitled to vote on any sale of all
or substantially all of the assets of the Company, and the issuance of
any shares that are in parity with the Series B Preference Ordinary
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 Series B
Preference Ordinary 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
Series B Preference Ordinary Shares voting together with any other
series or classes of preference ordinary 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 preference ordinary
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 preference ordinary
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 preference ordinary shares of all the relevant series at
such a meeting. Any Director elected by holders of preference ordinary
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
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remaining Director theretofore elected by the holders of preference
ordinary 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 preference ordinary 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 preference ordinary 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 and the
provisions of Article 41 of the Articles 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 preference
ordinary shares of the relevant series.
(d) Redemption. The Company shall be entitled to redeem all or any of the
Series B Preference Ordinary Shares as follows:
(i) Subject to clauses (ii), (iii) and (iv), the Series B
Preference Ordinary Shares shall not be redeemable by the Company
prior to the date to be determined by the Attorneys (or by either of
them) on the Pricing Date. 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 Series B
Preference Ordinary Shares pursuant to this clause for cash at a
redemption price of US$25.00 per share being redeemed (inclusive of
the nominal value
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thereof) plus all accrued and unpaid dividends, if any, thereon to the
date of redemption, without interest on such unpaid dividends.
(ii) At any time prior to the date determined by the Attorneys
(or by either of them) on the Pricing Date, if the Company shall have
submitted to the holders of Ordinary Shares a proposal for an
amalgamation, consolidation, merger, arrangement, reconstruction,
reincorporation, de-registration 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 13 November 2002 (whether by enactment or
official interpretation), requires, in each case, a vote of the
holders of the Series B Preference Ordinary Shares voting separately
as a single class (alone or with one or more class or series of
preference ordinary shares, including the Company's Series A
Preference Ordinary Shares), the Company shall be entitled 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 Series B Preference Ordinary
Shares pursuant to this clause for cash at a redemption price of
US$26.00 per share being redeemed (inclusive of the nominal value
thereof), plus all accrued and unpaid dividends, if any, to the date
of redemption.
(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 Series B Preference Ordinary 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
be entitled 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
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and in accordance with paragraph (e) below, to redeem any or all
Series B Preference Ordinary Shares pursuant to this clause for cash
at a redemption price of US$25.00 per share being redeemed (inclusive
of the nominal value thereof) plus accrued and unpaid dividends, if
any, to the date of redemption. 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 13 November
2002. 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 Series
B Preference Ordinary 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 Series B
Preference Ordinary 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 be entitled at any
time thereafter by not less than thirty (30) days nor
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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 Series B Preference Ordinary Shares
pursuant to this clause for cash at a redemption price of US$25.00 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 Series B Preference Ordinary 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 Series B Preference Ordinary Shares to be redeemed; (3) the
redemption price; (4) the place or places where certificates for Series B
Preference Ordinary 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 Series B Preference Ordinary Shares to be
redeemed will cease to accrue on such redemption date. If fewer than all
Series B Preference Ordinary Shares are to be redeemed, the notice mailed
to each such holder thereof will also specify the number of Series B
Preference Ordinary 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 Series B Preference Ordinary Shares are to be
redeemed, the number of shares to be redeemed will be determined by the
Directors in their absolute discretion and such Series B Preference
Ordinary Shares may be redeemed pro rata from the holders of record in
proportion to the number of Series B Preference Ordinary Shares held by
such holders (with adjustments to avoid redemption of fractional shares) or
by lot.
(g) If notice of redemption of any Series B Preference Ordinary Shares has
been given and if the funds necessary for such
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redemption have been set apart by the Company in trust for the benefit of
the holders of Series B Preference Ordinary Shares so called for
redemption, then from and after the redemption date, dividends will cease
to accrue on the Series B Preference Ordinary Shares being redeemed, the
Series B Preference Ordinary 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 Series B Preference
Ordinary Shares at the close of business on the dividend record date will
be entitled to receive the dividend payable with respect to such Series B
Preference Ordinary 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 payement date.
(i) Unless full cumulative dividends on all Series B Preference Ordinary
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 Series B Preference Ordinary Shares or
any Parity Shares may be redeemed, purchased or otherwise acquired by the
Company unless all Series B Preference Ordinary Shares and any Parity
Shares are redeemed; provided, that, the Company may acquire fewer than all
of the Series B Preference Ordinary Shares or any Parity Shares pursuant to
a purchase or exchange offer made on the same terms to holders of all
Series B Preference Ordinary Shares and Parity Shares as determined in good
faith by the Board of Directors of the Company.
(j) The Company, subject to (1) the special rights granted to any of the
Company's issued and outstanding shares and (2) the Company's requirement
pursuant to clause (i) to make a purchase or exchange offering on the same
terms to holders of all outstanding Series B Preference Ordinary Shares and
Parity Shares, may purchase Series B Preference Ordinary Shares. Any such
purchase made by the Company may be made in the open market,
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by tender to all holders of Series B Preference Ordinary Shares, by private
agreement or otherwise as the Directors see fit. Any Series B Preference
Ordinary Shares purchased by the Company for its own account (other than in
the ordinary course of business of dealing in securities) will be canceled
by the Company and will no longer be issued and outstanding.
(k) The Series B Preference Ordinary Shares may be purchased or redeemed by
the Company either out of profits or from the proceeds of a fresh issue of
shares or out of capital or 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
Series B Preference Ordinary 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 Series B Preference Ordinary
Shares not being redeemed, a new certificate for the remaining Series B
Preference Ordinary 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 Series B Preference
Ordinary 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 Series B Preference
Ordinary 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
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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 Series B
Preference Ordinary 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 Series B Preference Ordinary Shares,
so that the net amounts paid to the holders of the Series B Preference
Ordinary 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 Series B Preference Ordinary
Shares directly.
In addition, the Company shall not be obligated to pay any additional
amounts to a holder of Series B Preference Ordinary 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 Series B
Preference
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Ordinary 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 Series B Preference
Ordinary 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 Series B Preference Ordinary 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 Series B
Preference Ordinary Shares.
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(p) No Preemptive Rights. The Series B Preference Ordinary Shares shall not
be entitled to the benefits of any retirement or sinking fund. No holder of
Series B Preference Ordinary 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 Series B Preference Ordinary 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 Series B
Preference Ordinary Shares, (2) on a parity with the Series B Preference
Ordinary 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 Series B Preference
Ordinary Shares, if the holders of such class or series and the Series B
Preference Ordinary 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 Series B Preference Ordinary 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 Series B
Preference Ordinary 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 Series B
Preference Ordinary Shares will rank on a parity with the Series A
Preference Ordinary Shares as to the payment of dividends and
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as to distribution of assets upon any voluntary or involuntary return of
assets on liquidation, dissolution, winding up or otherwise of the Company.
2. RESOLVED that, in the event that the holders of the preference ordinary
shares elect two persons and nominate such elected persons for appointment
by the Board of Directors as additional Directors of the Company pursuant
to paragraph 1(c)(iii) of these Resolutions during a Voting Period, the
Board of Directors hereby, pursuant to Article 52 of the Articles, increase
the number of persons consisting of the Board of Directors by two persons
(subject to the limit in the number of Directors stated in Article 52) and
hereby appoint, pursuant to Article 82 of the Articles, such persons
elected and nominated by the holders of preference ordinary shares as
additional Directors of the Company. Such additional Directors shall be
apportioned among the classes of Directors in accordance with Article 81(a)
of the Articles. Such appointment is conditional upon and subject to the
following:
(a) the term of office of each such Director shall in all events
automatically expire at the end of the applicable Voting Period; and
(b) prior to the appointment of each such elected person as a Director
becoming effective, each such person shall provide to the Company
notice in writing that he resigns the office of Director, in the form
attached to these Resolutions, which form is hereby approved, such
notice to only be effective upon the earliest of: (i) the expiration
of the Voting Period during which such Director was appointed or (ii)
the passing of an ordinary resolution by the holders of the relevant
series of outstanding preference ordinary shares for the removal of
such Director (in accordance with paragraph 1(c)(iv) of these
Resolutions).
3. RESOLVED that, in the event that it is necessary for any Director
elected and nominated by the holders of preference ordinary shares to be
removed from office in accordance with the provisions of paragraph 1(c)(iv)
of these Resolutions, the Board of Directors shall put a Special Resolution
to the Company at the immediately following Annual General Meeting of the
Company for the removal of such Director or Directors pursuant to Article
81(b) of the Articles.
4. RESOLVED that, in the event that to give effect to the rights granted to
the holders of preference ordinary shares by the provisions of paragraph
1(c)(iii) of these Resolutions it is necessary to increase the limit in the
number
-16-
of Directors specified in Article 52 of the Articles, the Directors shall
put an ordinary resolution to the Company at the next Annual General
Meeting of the Company to increase the limit in the number of Directors.
5. RESOLVED, that the Company be, and it hereby is, authorised to issue and
sell up to 27,000,000 Series B Preference Ordinary Shares, par value
US$0.01 (including Series B Preference Ordinary Shares to be sold pursuant
to any over-allotment option), to one or more underwriters to be named in
an underwriting agreement at a price at which issued and sold by the
Company, in such number and at such price, rate of dividends, and other
terms and conditions of such Series B Preference Ordinary Shares to be
determined by the Attorneys (or by either of them) upon the issue of such
shares. All such determinations in respect of the Series B Preference
Ordinary Shares made by the Attorneys (or by either of them), including,
without limitation, approval of the form of share certificate, are hereby
ratified and confirmed.