EXHIBIT 2.2
[CONFORMED]
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FIRST AMENDMENT
TO THE
AGREEMENT AND PLAN OF MERGER
AND EXCHANGE AGREEMENT
AMONG
PETROLEUM GEO-SERVICES ASA,
VERITAS DGC INC.,
VENUS I,
VENUS HOLDCO INC.,
VENUS MERGERCO INC.,
NEPTUNE I, INC.,
NEPTUNE HOLDCO LLC
AND
NEPTUNE MERGERCO INC.
DATED AS OF JUNE 21, 2002
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FIRST AMENDMENT
TO THE
AGREEMENT AND PLAN OF MERGER
AND EXCHANGE AGREEMENT
THIS FIRST AMENDMENT, DATED AS OF JUNE 21, 2002 (this
"Amendment"), TO THE AGREEMENT AND PLAN OF MERGER AND EXCHANGE AGREEMENT (the
"Agreement"), dated as of November 26, 2001, is among Petroleum Geo-Services
ASA, a Norwegian public limited liability company ("PGS"), Veritas DGC Inc., a
Delaware corporation ("Veritas"), Venus I, a Cayman Islands exempted company and
a direct, wholly owned subsidiary of Veritas, Venus Holdco Inc., a Delaware
corporation and an indirect, wholly owned subsidiary of Venus I, Venus Mergerco
Inc., a Delaware corporation and a direct, wholly owned subsidiary of Venus
Holdco Inc., Neptune I, Inc., a Cayman Islands exempted company and a direct,
wholly owned subsidiary of Veritas, Neptune Holdco LLC, a Delaware limited
liability company and an indirect, wholly owned subsidiary of Neptune I, Inc.,
and Neptune Mergerco Inc., a Delaware corporation and a direct, wholly owned
subsidiary of Neptune Holdco LLC. Capitalized terms not otherwise defined herein
shall have the meanings given to them in the Agreement as modified by paragraph
21 of this Amendment.
RECITALS
WHEREAS, certain parties thereto wish to amend the Agreement
in certain respects, certain parties to the Agreement wish to withdraw from the
Agreement and Neptune I, Inc., Neptune Holdco LLC and Neptune Mergerco Inc. wish
to become new parties to the Agreement in substitution for the withdrawing
parties;
WHEREAS, the Boards of Directors of each of PGS, Veritas,
Venus I, Venus Holdco Inc., Venus Mergerco Inc., Neptune I, Inc., Neptune Holdco
LLC and Neptune Mergerco Inc. have determined this Amendment amending and
supplementing the Agreement and the terms and conditions of the Merger and the
Exchange Offer, and substituting certain new parties to the Agreement in the
place of other parties thereto, to be advisable and in the best interests of
their respective corporations, stockholders and shareholders and to be
consistent with, and in furtherance of, their respective business strategies and
goals, and by resolutions duly adopted, have approved and adopted this
Amendment;
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein and in
the Agreement, the parties hereto hereby agree as follows:
1. SECTION 1.3 OF THE AGREEMENT
The proviso in the last sentence of Section 1.3 of the Agreement is
hereby amended and restated to provide as follows:
"; provided, however, that the Effective Time shall occur promptly
following the time of acceptance of PGS Shares and PGS ADSs following
the expiration date of the Exchange Offer (the "Exchange Offer
Closing")"
1
2. SECTION 3.3 OF THE AGREEMENT
Section 3.3 of the Agreement is hereby amended and restated to provide
as follows:
"Section 3.3 Board of Directors and Officers of Caymanco
(a) Caymanco will take such action as may be necessary to
cause, as of the Exchange Offer Closing, the membership of the Board of
Directors of Caymanco to consist of four persons designated, in it sole
discretion, by PGS, one of whom shall be Xxxxxx Xxxxxxxxxx, and six
persons designated, in its sole discretion, by Veritas, one of whom
shall be Xxxxx X. Xxxxxx. From and after the Exchange Offer Closing,
each person so designated shall serve as a director of Caymanco until
such person's successor shall be elected and qualified or such person's
earlier death, resignation or removal in accordance with the Memorandum
of Association and the Articles of Association of Caymanco. Directors
of Caymanco not continuing after the Exchange Offer Closing shall
resign from the Board of Directors of Caymanco with effect from the
Exchange Offer Closing. Additionally, Xxxxxx Xxxxxxxxxx shall be the
non-executive Chairman of the Board of Caymanco.
(b) Prior to the Exchange Offer Closing, Caymanco shall
appoint Xxxxx X. Xxxxxx as the Chief Executive Officer of Caymanco and
shall appoint Xxxxxxx X. Xxxxxxxxxx as the Chief Financial Officer of
Caymanco. The Board of Directors of Caymanco shall appoint such
additional persons as officers of Caymanco, each of whom shall report,
directly or indirectly, to Xx. Xxxxxx, and each such officer shall
thereafter serve until such officer's successor shall be appointed or
such officer's earlier death, resignation or removal in accordance with
the Memorandum of Association and the Articles of Association of
Caymanco. If any such person is unable or unwilling to serve as an
officer of Caymanco, then a substitute officer shall be selected.
3. SECTION 5.1(a) OF THE AGREEMENT
Section 5.1(a) of the Agreement is hereby amended and restated to
provide as follows:
"(a) Upon the terms and subject to the conditions set forth in
this Agreement, Caymanco shall make the Exchange Offer by offering 0.38
Caymanco Shares in exchange for each PGS Share and each PGS ADS (the
ratio of such exchange being hereinafter referred to as the "Exchange
Ratio")."
4. SECTION 5.5(a)(ii) OF THE AGREEMENT
Clause (ii) of the last sentence of Section 5.5(a) of the Agreement is
hereby amended and restated to provide as follows:
"(ii) the option price per Caymanco Share shall be an amount in U.S.
dollars equal to the option price per PGS Share subject to such PGS
Option in effect immediately prior to the Effective Time divided by the
Exchange Ratio (which price per share (x) will be determined using the
Norwegian kroner/U.S. dollar exchange rate on the expiration date of
the Exchange Offer as reported in the New York City edition of The Wall
Street
2
Journal or, if not reported thereby, another authoritative source and
(y) as so determined, will be rounded up to the next full cent)."
5. SECTION 6.18 OF THE AGREEMENT
Section 6.18 of the Agreement is hereby amended and restated to provide
as follows:
"Section 6.18 Opinion of Financial Advisor. The Board of
Directors of Veritas has received the opinion of Evercore Group Inc.
dated June 21, 2002 to the effect that, as of the date thereof, the
Merger Ratio and the Exchange Ratio are fair, from a financial point of
view, to the holders of Veritas Common Stock."
6. SECTION 7.18 OF THE AGREEMENT
Section 7.18 of the Agreement is hereby amended and restated to provide
as follows:
"Section 7.18 Opinion of Financial Advisor. The Board of
Directors of PGS has received the opinion of Xxxxxxx Xxxxx dated June
20, 2002 to the effect that, as of the date thereof and in light of the
Merger Ratio, the Exchange Ratio is fair, from a financial point of
view, to the holders of PGS Shares and PGS ADSs."
7. SECTION 8.6 OF THE AGREEMENT
The first sentence of Section 8.6 of the Agreement is hereby amended
and restated to provide as follows:
"From the date hereof to the Effective Time, each of Veritas, PGS and
Caymanco shall allow all designated officers, attorneys, accountants
and other representatives of PGS, Caymanco or Veritas, as the case may
be, access at all reasonable times upon reasonable notice and at the
expense of the party requesting access (or on whose behalf such access
is requested) (provided that such expenses for which the requesting
party shall pay directly or reimburse the other party shall be limited
to the other party's out-of-pocket expenses to third parties, but such
expenses shall not include any fees and expenses of Xxxxx Xxxxx L.L.P.
incurred by PGS or of Fulbright & Xxxxxxxx L.L.P. or Xxxxx & XxXxxxxx
incurred by Veritas) to the records and files, correspondence, audits
and properties, as well as to all information relating to commitments,
contracts, titles and financial position, or otherwise pertaining to
the business and affairs of PGS, Caymanco and Veritas and their
respective Subsidiaries, including inspection of such properties;
provided that no investigation pursuant to this Section 8.6 shall
affect, abrogate or waive any representation or warranty given by any
party hereunder, and provided further that notwithstanding the
provision of information or investigation by any party, no party shall
be deemed to make any representation or warranty except as expressly
set forth in this Agreement."
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8. SECTION 8.10(b) OF THE AGREEMENT
Section 8.10(b) of the Agreement is hereby amended and restated to
provide as follows:
"(b) PGS shall use commercially reasonable best efforts to
cause to be delivered to Veritas and Caymanco "comfort" letters of
PricewaterhouseCoopers LLP, PGS' independent public accountants, dated
the effective date of the Form S-4 and the Closing Date, respectively,
and addressed to Veritas with regard to certain financial information
regarding PGS as of December 31, 2000 and for each of the two years in
the period ended December 31, 2000 included in the Form S-4, in form
reasonably satisfactory to Veritas and customary in scope and substance
for "comfort" letters delivered by independent public accountants in
connection with registration statements similar to the Form S-4."
9. SECTION 8.14(g) OF THE AGREEMENT
Section 8.14(g) of the Agreement is hereby amended and restated to
provide as follows:
"(g) Veritas and PGS agree to cooperate in good faith to
design and establish and, prior to the Exchange Offer Closing, Caymanco
shall adopt, and Veritas (as sole shareholder of Caymanco) shall
approve, a plan or plans for Caymanco for providing equity based awards
(including stock options, restricted stock and stock appreciation
rights, performance bonus awards and purchases of Caymanco stock by
employees). To the extent it regards it is advisable, Veritas may
request its stockholders to approve any such plan at the Veritas
Special Meeting."
10. SECTION 8.20 OF THE AGREEMENT
Section 8.20 of the Agreement is hereby amended and restated to provide
as follows:
"None of the parties hereto (nor any of their respective Subsidiaries)
will take any action or fail to take any action, except as contemplated
by the Exchange Offer, including, without limitation, Section 5.1(d),
that would be likely to (a) cause the Merger not to qualify as a
reorganization described in Section 368(a) of the Code or (b) cause the
holders of Veritas Common Stock (other than any holder who, immediately
after the Merger, is a "five-percent transferee shareholder" as to
Caymanco within the meaning of Treas. Reg. Section 1.367(a)-3(c)(5))
not to qualify for an exception to Section 367(a)(1) of the Code with
respect to the Merger. Notwithstanding anything to the contrary
contained in this Section 8.20, but subject to Section 8.21, the
parties acknowledge that PGS may structure the sale of its Atlantis
Subsidiary and any other transaction contemplated by Section 10.7, and
the use of proceeds from such sale or transaction (subject to any
applicable limitations set forth in PGS's $250 million bridge facility
described in Item 7 of the PGS Supplemental Disclosure Letter), in any
manner which PGS in its sole discretion believes to be appropriate. PGS
and its subsidiaries shall, as promptly as reasonably practicable,
furnish to Veritas such information, documents, representations and
certifications that PGS or its Subsidiaries are able to give and
reasonable assistance as Veritas may reasonably request, from time to
time, to assist Veritas in applying for and receiving a favorable
ruling from the Internal Revenue Service under Treas. Reg.
4
Section 1.367(a)-3(c)(9) with respect to the Merger; provided, however,
that the receipt of such a favorable ruling shall not be a condition of
the obligation of any party to effect the Merger and the closing of the
Merger shall not be delayed by reason of the failure to have obtained
such a favorable ruling as of any time. The provision of information
and documents pursuant to the preceding sentence shall be subject to
the limitations set forth in the second sentence of Section 8.6. The
principles of Section 8.5(a) shall apply to any application for ruling
described in this Section 8.20."
11. SECTION 9.1(f) OF THE AGREEMENT
Section 9.1(f) is hereby added to the Agreement and provides as
follows:
"(f) The staff of the SEC shall have approved, or not objected
to, the treatment of Veritas as the acquiror for accounting purposes in
the Combination and, without limiting the foregoing, neither PGS nor
Veritas shall have been notified that the SEC has withdrawn or changed
any such approval of, or has objected to, such accounting treatment;
provided, however, that the condition set forth in this Section 9.1(f)
shall be deemed satisfied or waived by the parties upon the
effectiveness of the Form S-4 unless and until Caymanco, Veritas or PGS
has received notification from the SEC, or the SEC has indicated in a
public release that would apply to the Combination, that the SEC will
object to such accounting treatment."
12. SECTION 9.2(d) OF THE AGREEMENT
Section 9.2(d) of the Agreement is hereby amended to provide as
follows:
"(d) [INTENTIONALLY OMITTED]"
13. SECTION 9.2(e) OF THE AGREEMENT
Section 9.2(e) of the Agreement is hereby amended to provide as
follows:
"(e) [INTENTIONALLY OMITTED]"
14. SECTION 10.2(a) OF THE AGREEMENT
The reference in Section 10.2(a) of the Agreement to "June 30, 2002"
shall be to "October 31, 2002."
15. SECTION 10.2(e) OF THE AGREEMENT
Section 10.2(e) is hereby added to the Agreement and provides as
follows:
"(e) mailing of the Exchange Offer Prospectus and the Proxy
Statement/Prospectus to the shareholders of PGS and Veritas,
respectively, shall not have commenced by September 30, 2002."
5
16. SECTION 10.7 OF THE AGREEMENT
Section 10.7 is hereby added to the Agreement and provides as follows:
"Section 10.7. Additional Right of Termination by PGS or
Veritas. This Agreement may be terminated by PGS or Veritas at any time
within the Pre-Mailing Determination Period (as defined below), by
action of the Board of Directors of PGS or Veritas, unless, by the date
of such termination:
(a) Caymanco shall have received commitments for the
placement or sale on market terms satisfactory to both Veritas
and PGS of equity or equity-linked securities of Caymanco that
shall be expected to yield net cash proceeds to Caymanco of
not less than $200 million; or
(b) PGS shall have consummated the sale of its
Atlantis Subsidiary for gross proceeds (including cash
proceeds and the assumption of debt) of not less than $195
million; or
(c) PGS shall have consummated the sale of assets,
which may include but not be limited to its Atlantis
Subsidiary, generating gross proceeds (including cash proceeds
and the assumption of debt) of not less than $200 million;
provided that no such sale of assets, except for those sales
disclosed in the PGS Disclosure Letter or the PGS Supplemental
Disclosure Letter, may be consummated without Veritas' prior
written consent; or
(d) any combination of the events referred to in
clauses (a) through (c) of this Section 10.7 shall have
occurred in such amounts that, when aggregated together, yield
(or, in the case of clause (a), are expected to yield) gross
proceeds (including cash proceeds and, in the case of asset
sales, the assumption of debt) of not less than $200 million.
If this Agreement is terminated pursuant to this Section 10.7,
the party terminating this Agreement shall pay the other party $7.5
million at the time of such termination to reimburse such party for a
portion of its costs and expenses incurred in connection with this
transaction. As used in this Section 10.7, the "Pre-Mailing
Determination Period" shall be the five business day period commencing
on, and including, the date that the staff of the SEC notifies Caymanco
or Veritas that the staff has no further comments with respect to the
Form S-4 (or, in the case of PGS, the date Caymanco or Veritas notifies
PGS to such effect)."
17. SECTION 11.9(c) OF THE AGREEMENT
The proviso in the first sentence of Section 11.9(c) is hereby deleted
and eliminated.
6
18. EXHIBIT E, "CONDITIONS OF EXCHANGE OFFER", TO THE AGREEMENT
Paragraph (m) of Exhibit E to the Agreement is hereby amended to
provide as follows:
"(m) [INTENTIONALLY OMITTED]"
Paragraph (n) of Exhibit E to the Agreement is hereby amended to
provide as follows:
"(n) [INTENTIONALLY OMITTED]"
Paragraph (r) of Exhibit E to the Agreement is hereby added to such
Exhibit E to provide as follows:
"(r) The staff of the SEC shall not have approved, or shall
have objected to, the treatment of Veritas as the acquiror for
accounting purposes in the Combination or, without limiting the
foregoing, PGS or Veritas shall have been notified that the SEC has
withdrawn or changed any such approval of, or has objected to, such
accounting treatment; provided, however, that this condition shall be
deemed satisfied or waived by the parties upon the effectiveness of the
Form S-4 unless and until Caymanco, Veritas or PGS has received
notification from the SEC, or the SEC has indicated in a public release
that would apply to the Combination, that the SEC will object to such
accounting treatment."
19. EXHIBITS B AND C OF THE AGREEMENT
Exhibit B (Memorandum of Association of Caymanco) and Exhibit C
(Articles of Association of Caymanco) to the Agreement are hereby amended and
restated to read in their entirety as attached hereto as Exhibits A and B,
respectively.
20. UPDATE TO VERITAS AND PGS DISCLOSURE LETTERS
The Veritas Disclosure Letter and the PGS Disclosure Letter are hereby
amended and supplemented to include the information set forth, respectively, in
the Veritas Supplemental Disclosure Letter and the PGS Supplemental Disclosure
Letter, each dated the date of this Amendment and delivered concurrently with
the execution of this Amendment, but only to the extent of the information
specifically set forth in each such Supplemental Disclosure Letter.
21. SUBSTITUTION OF PARTIES
The parties hereto agree that, effective as of the date of this
Amendment, Venus I, Venus Holdco Inc. and Venus Mergerco Inc. shall each be
permitted to, and do hereby, withdraw as parties to the Agreement. Such
withdrawal shall constitute a complete novation of the obligations of Venus I,
Venus Holdco Inc. and Venus Mergerco Inc. under the Agreement. Neptune I, Inc.,
Neptune Holdco LLC and Neptune Mergerco Inc. shall, as of and from the date of
this Amendment, be substituted as parties to the Agreement and this Amendment in
the places of Venus I, Venus Holdco Inc. and Venus Mergerco Inc., respectively,
by their agreements hereto, evidenced below, and shall assume, by their
agreements hereto evidenced below, all the rights, obligations, duties and
agreements of Venus I, Venus Holdco Inc. and Venus Mergerco
7
Inc., respectively, under the Agreement and this Amendment in the full place and
stead of Venus I, Venus Holdco Inc. and Venus Mergerco Inc., respectively. The
parties further agree, from and after the date hereof, that (i) all references
to "Caymanco" in the Agreement and in this Amendment shall be deemed to refer to
Neptune I, Inc. rather than Venus I in full substitution therefor, (ii) all
references therein to "Veritas Holdco" shall be deemed to refer to Neptune
Holdco LLC rather than Venus Holdco Inc. in full substitution therefor and (iii)
all references therein to "Veritas Merger Sub" shall be deemed to refer to
Neptune Mergerco Inc. rather than Venus Mergerco Inc. in full substitution
therefor.
22. OTHER TERMS OF THE AGREEMENT
Except as otherwise provided in this Amendment, all other terms of the
Agreement shall remain in full force and effect. All references in the Agreement
to "this Agreement" shall be read as references to the Agreement, as amended by
this Amendment, but references to the date of the Agreement shall remain
references to November 26, 2001.
23. COUNTERPARTS
This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a number of copies hereof each signed by less
than all, but together signed by all of the parties hereto.
24. HEADINGS
Headings of the Sections of this Amendment are for the convenience of
the parties only and shall be given no substantive or interpretative effect
whatsoever.
25. GOVERNING LAW
This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to its rules of conflict of
laws.
8
IN WITNESS WHEREOF, the parties have executed this Amendment
and caused the same to be duly delivered on their behalf on the day and year
first written above.
PETROLEUM GEO-SERVICES ASA
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------------------
Xxxxxx Xxxxxxxxxx
Chairman of the Board
VERITAS DGC INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Xxxxx X. Xxxxxx
Chairman and Chief Executive Officer
VENUS I
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Xxxxx X. Xxxxxx
Sole Director
VENUS HOLDCO LLC
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Xxxxx X. Xxxxxx
President
VENUS MERGERCO INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Xxxxx X. Xxxxxx
President
9
NEPTUNE I, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxxxxxx
Vice President
NEPTUNE HOLDCO LLC
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Xxxxx X. Xxxxxx
President
NEPTUNE MERGERCO INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Xxxxx X. Xxxxxx
President
10
CAYMANCO MEMORANDUM OF ASSOCIATION
THE COMPANIES LAW (2001 SECOND REVISION)
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
---------------------
AMENDED AND RESTATED BY SPECIAL RESOLUTION DATED , 2002
1. The name of the company is (the "Company").
2. The Registered Office of the Company shall be situated at the offices
of , Grand Cayman, Cayman Islands, or at such other place 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 objective not
prohibited by any law as provided by Section 7(4) of the Companies Law (2001
Second Revision), as may be amended, modified or re-enacted from time to time
(the "Companies Law").
4. Except as prohibited or limited by the Companies Law, the Company shall
have full power and authority to carry out any object and shall have and be
capable of from time to time and at all times exercising any and all of the
powers at any time or from time to time exercisable by a natural person or body
corporate in doing in any part of the world whether as principal, agent,
contractor, or otherwise whatever may be considered by it necessary or desirable
for the attainment of its objects and whatever else may be considered by it as
incidental or conducive thereto or consequential thereof, including, but without
in any way restricting the generality of the foregoing, the power to make any
alterations or amendments to this Memorandum of Association and the Articles of
Association of the Company considered necessary or convenient in the manner set
out in the Articles of Association of the Company all irrespective of any
question of corporate benefit as provided by Section 27(2) of the Companies Law.
5. The liability of each member is limited to the amount, if any, from
time to time unpaid on such member's shares.
6. The share capital of the Company is US$ , divided into
Ordinary Shares of a nominal or par value of US$0.01 per share
(including one Ordinary Share designated "Special Voting Stock, Series 1" and
one Ordinary Share designated "Special Voting Stock, Series 2") and shares
of a nominal or par value of US$0.01 per share, which may be designated and
created as shares of any other classes or series of shares with the respective
rights and restrictions determined upon the creation thereof by action of the
Board of Directors and/or as expressly provided for in the Articles of
Association of the Company, with power for the Company insofar as is permitted
by law, to redeem, call or purchase any of its shares and to increase or reduce
the said capital subject to the provisions of the Companies Law and the Articles
of Association and to issue any part of its capital, whether original, redeemed,
called or increased with or without any preference, priority or special
privilege or subject to any postponement of rights or to any conditions or
restrictions and so that, unless the conditions of issue shall otherwise
expressly declare, every issue of shares whether declared to be ordinary,
preference or otherwise shall be subject to the powers hereinabove contained.
7. The Company may exercise the power contained in Section 226 of the
Companies Law to deregister in the Cayman Islands and be registered by way of
continuation in some other jurisdiction.
8. 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 (2001
Revision) as may be amended, modified or re-enacted from time to time, or 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 may be
amended, modified or re-enacted from time to time, or to carry on the business
of Company Management without being licensed in that behalf under the provisions
of the Companies Management Law (2001 Revision) as may be amended, modified or
re-enacted from time to time.
9. The Company will not trade in the Cayman Islands with any person, firm
or company 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 from 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.
D-2
THE COMPANIES LAW (2001 SECOND REVISION)
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
---------------------
TABLE OF CONTENTS
PAGE NO.
--------
I. INTERPRETATION.............................................. 1
II. CERTIFICATES FOR SHARES..................................... 2
III. ISSUE OF SHARES............................................. 2
IV. ORDINARY SHARES............................................. 3
V. OTHER CLASSES OR SERIES OF SHARES........................... 4
VI. VARIATION OF RIGHTS OF SHARES............................... 4
VII. REDEMPTION AND REPURCHASE................................... 5
VIII. TRANSFER OF SHARES.......................................... 5
IX. NONRECOGNITION OF TRUSTS.................................... 5
X. TRANSMISSION OF SHARES ON DEATH OR BANKRUPTCY............... 6
XI. AMENDMENT OF MEMORANDUM OF ASSOCIATION, CHANGE OF LOCATION
OF REGISTERED OFFICE AND ALTERATION OF CAPITAL.............. 6
XII. CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE........... 7
XIII. VOTING...................................................... 7
XIV. GENERAL MEETINGS............................................ 8
XV. NOTICE OF GENERAL MEETINGS.................................. 8
XVI. PROCEEDINGS AT GENERAL MEETINGS............................. 8
XVII. PROXIES..................................................... 11
XVIII. DIRECTORS................................................... 12
XIX. POWERS AND DUTIES OF DIRECTORS.............................. 14
XX. COMMITTEES.................................................. 15
XXI. PROCEEDINGS OF DIRECTORS.................................... 16
XXII. VACATION OF OFFICE OF DIRECTOR.............................. 16
XXIII. CERTAIN BUSINESS COMBINATIONS............................... 17
XXIV. BUSINESS COMBINATIONS WITH INTERESTED MEMBERS............... 17
XXV. SEAL........................................................ 20
XXVI. OFFICERS.................................................... 20
XXVII. DIVIDENDS AND RESERVES...................................... 21
XXVIII. CAPITALIZATION.............................................. 22
XXIX. AUDIT....................................................... 22
XXX. NOTICES..................................................... 22
XXXI. LIMITATION OF LIABILITY AND INDEMNITY....................... 23
XXXII. BOOKS AND RECORDS........................................... 23
XXXIII. WINDING UP.................................................. 24
XXXIV. DEREGISTRATION.............................................. 24
XXXV. FISCAL YEAR................................................. 24
XXXVI. AMENDMENTS OF ARTICLES...................................... 24
E-i
I. INTERPRETATION
1.1 The Regulations or Articles contained or incorporated in Table "A"
Regulations For Management of a Company Limited by Shares in the First Schedule
to the Statute shall not apply to this Company, and the following Articles shall
be the Articles of Association of the Company. The following terms shall have
the following meanings wherever they appear herein, and such meanings shall be
equally applicable to both the singular and plural forms of the terms herein
defined.
"Articles" means these Articles of Association, as originally framed or as
from time to time altered by Special Resolution.
"Board of Directors" means the board of directors of the Company.
"Company" means , a Cayman Islands exempted company limited by
shares. Where agreement, consent or other action of the Company is provided for
herein, such action shall not require approval of the Members, except as
expressly required by the Statute or these Articles.
"Directors" means the directors of the Company as of the applicable date.
"dividend" includes bonus.
"holder," in relation to any shares, means the Member whose name is entered
in the Register as the holder of such shares.
"Member" has the meaning ascribed to it in Section 38 of the Statute.
"Memorandum" means the memorandum of association of the Company, as may be
amended from time to time.
"Month" means calendar month.
"Ordinary Resolution" means a resolution passed by a majority of such
Members as, being entitled to do so, vote in person or by proxy at any general
meeting of the Company at which the required quorum is present in person or by
proxy.
"Ordinary Shares" has the meaning ascribed to it in Article 3.1.
"person" means any individual, corporation, partnership, unincorporated
association or other legal entity.
"Register" means the Register of Members of the Company as maintained in
accordance with Section 40 of the Statute.
"Registered Office" means the registered office of the Company maintained
in accordance with Section 50 and Section 51 of the Statute, and as may be
relocated from time to time.
"Secretary" means the secretary of the Company and includes an Assistant
Secretary and any person appointed to perform the duties of Secretary of the
Company.
"shares" means any Ordinary Shares or other shares issued in the capital of
the Company.
"shares generally entitled to vote" means any share which entitles the
holder to attend and vote at all general meetings of the Company and excludes
(a) any share where the right to vote at general meetings of the Company is
conditional on the Company being in default of an obligation with respect to a
right attaching to the class or series of share to which that share belongs
and/or (b) any share where the right to vote relates solely to such a class or
series of shares (other than the Ordinary Shares).
"Special Resolution" has the same meaning as in the Statute.
"Special Voting Stock, Series 1" has the meaning ascribed to it in Article
4.2.
"Special Voting Stock, Series 2" has the meaning ascribed to it in Article
4.3.
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"Statute" means the Companies Law (2001 Second Revision) of the Cayman
Islands, as amended, and every statutory modification or re-enactment thereof
for the time being in force.
"written" and "in writing" includes all modes of representing or
reproducing words in visible form. Words importing the singular number shall
also include the plural number and vice-versa. Words importing the masculine
gender shall also include the feminine gender.
II. CERTIFICATES FOR SHARES
2.1 Unless otherwise provided by resolution of the Board of Directors,
shares shall be represented by certificates that shall be in such form as is
approved by the Board of Directors.
2.2 The Board of Directors shall have authority to make such rules and
regulations as it may deem expedient concerning the issue, transfer (in addition
to or in lieu of those set forth in Article VIII) and registration of shares,
including without limitation, such rules and regulations as may be deemed
expedient concerning the issue of certificates in lieu of certificates claimed
to have been lost, destroyed, stolen or mutilated.
III. ISSUE OF SHARES
3.1 The authorized share capital of the Company as of the date of adoption
of these Articles is US$ divided into Ordinary Shares of a
nominal or par value of US$0.01 per share (including one Ordinary Share
designated "Special Voting Stock, Series 1" and one Ordinary Share designated
"Special Voting Stock, Series 2"), with the rights as set out in these Articles
and the Memorandum ("Ordinary Shares"), and shares of a nominal or par
value of US$0.01 per share which may be designated and created as shares of any
other classes or series of shares with the respective rights and restrictions
determined upon the creation thereof by action of the Board of Directors.
Notwithstanding the foregoing, the authorized share capital of the Company may
be increased by Ordinary Resolution.
3.2 Subject to the provisions of these Articles, all unissued shares for
the time being in the capital of the Company shall be at the disposal of the
Board of Directors, and the Board of Directors may designate, re-designate,
allot, grant options over or otherwise dispose of them to such persons, on such
terms and conditions and at such times as they deem proper.
3.3 No holder of Ordinary Shares or any other shares (unless such right is
expressly conferred on the holders of such shares) shall, by reason of such
holding, have any preemptive or preferential right to subscribe to or purchase
any shares or any notes, debentures, bonds or other securities of the Company,
whether or not the issuance of any such shares, notes, debentures, bonds or
other securities would adversely affect the dividend, voting or any other rights
of such holder.
3.4 The Company may, insofar as may be permitted by law, pay a commission
to any person in consideration of such person or any other person subscribing or
agreeing to subscribe whether absolutely or conditionally for any shares. Such
commissions may be satisfied by the payment of cash or the lodgment of shares or
partly in one way and partly in the other. The Company may also on any issue of
shares pay such brokerage as may be lawful.
3.5 The Directors may issue fractions of a share of any class or series of
shares, and, if so issued, a fraction of a share (calculated to three decimal
points) shall be subject to and carry the corresponding fraction of limitations,
preferences, privileges, qualifications, restrictions, rights (including,
without limitation, voting and participation rights) and other attributes of a
whole share of the same class or series of shares. If more than one fraction of
a share of the same class or series is issued to or acquired by the same member
such fractions shall be accumulated. For the avoidance of doubt, in these
Articles the expression "share" shall include a fraction of a share.
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3.6 Any shares which have been redeemed or otherwise repurchased by the
Company shall have the status of authorized but unissued shares and may be
subsequently issued in accordance with the Memorandum and these Articles.
3.7 The Board of Directors shall have the fullest powers permitted by law
to pay all or any monies in respect of the redemption or purchase of any shares
out of the Company's share capital and share premium account.
IV. ORDINARY SHARES
4.1 The Board of Directors may allot, issue or grant any option, right,
warrant or other security exercisable for, convertible into or exchangeable for,
or otherwise dispose of, any shares or securities of the Company at such times
and on such terms as it deems proper. Upon approval of the Board of Directors,
such number of Ordinary Shares, or other shares or securities of the Company, as
may be required for such purpose shall be reserved for issuance in connection
with any 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 Ordinary Shares or other shares or securities of the
Company. Notwithstanding the generality of the foregoing, the Board of Directors
is expressly authorized and empowered to implement or effect at its sole
discretion the issuance of a preferred share purchase right to be attached to
each issued Ordinary Share with such terms and for such purposes, including the
influencing of takeovers, as may be described in a rights agreement between the
Company and a rights agent.
4.2 Special Voting Stock, Series 1 designated. The series of Ordinary
Shares, consisting of one such share, designated as "Special Voting Stock,
Series 1", shall have the following rights and restrictions. Each outstanding
share of Special Voting Stock, Series 1 shall be entitled at any relevant date
to the number of votes determined by the Board of Directors in accordance with
the "Plan of Arrangement" (as that term is defined in that certain Combination
Agreement dated as of May 10, 1996 (hereinafter referred to as the "VESI
Combination Agreement"), by and between Veritas DGC Inc. (formerly named Digicon
Inc.) ("Veritas") and Veritas Energy Services Inc. ("VESI")) attached hereto as
Exhibit A to these Articles, on all matters presented to the Members. No
dividend or distribution of assets shall be paid to the holders of Special
Voting Stock, Series 1. The Special Voting Stock, Series 1 is not convertible
into any other class or series of the share capital of the Company or into cash,
property or other rights, and may not be redeemed. Any shares of Special Voting
Stock, Series 1 purchased or otherwise acquired by the Company shall be deemed
retired and shall be canceled and may not thereafter be reissued or otherwise
disposed of by the Company. So long as any "VESI Exchangeable Shares" (i.e.,
"Exchangeable Shares," as that term is defined in the VESI Combination
Agreement) shall be outstanding, the number of shares comprising the Special
Voting Stock, Series 1 shall not be increased or decreased and no other term of
the Special Voting Stock, Series 1 shall be amended, except upon the unanimous
approval of the holders of the issued Ordinary Shares.
4.3 Special Voting Stock, Series 2 designated. The series of Ordinary
Shares, consisting of one such share, designated as "Special Voting Stock,
Series 2", shall have the following rights and restrictions. Each outstanding
share of Special Voting Stock, Series 2 shall be entitled at any relevant date
to the number of votes determined by the Board of Directors in accordance with
the "Plan of Arrangement" (as that term is defined in that certain Amended and
Restated Combination Agreement dated as of March 10, 1999 (hereinafter referred
to as the "ERS Combination Agreement") by and between Veritas and Enertec
Resource Services Inc. ("ERS")) attached hereto as Exhibit B to these Articles,
on all matters presented to the Members. No dividend or distribution of assets
shall be paid to the holders of Special Voting Stock, Series 2. The Special
Voting Stock, Series 2 is not convertible into any other class or series of the
share capital of the Company or into cash, property or other rights, and may not
be redeemed. Any shares of Special Voting Stock, Series 2 purchased or otherwise
acquired by the Company shall be deemed retired and shall be canceled and may
not thereafter be reissued or otherwise disposed of by the Company. So long as
any "ERS Exchangeable Shares" (i.e., "Exchangeable Shares," as that term is
defined in the ERS Combination Agreement) shall be outstanding, the number of
shares comprising the Special Voting Stock,
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Series 2 shall not be increased or decreased and no other term of the Special
Voting Stock, Series 2 shall be amended, except upon the unanimous approval of
the holders of the issued Ordinary Shares.
4.4 Subject to the provisions of applicable law and any rights granted to
any series or class of shares other than Ordinary Shares, the holders of
Ordinary Shares shall have and possess the exclusive right to notice of general
meetings of the Company and the exclusive power to vote on resolutions put to
general meetings of the Company.
V. OTHER CLASSES OR SERIES OF SHARES
5.1 The Board of Directors is authorized, without obtaining any vote or
consent of the holders of any class or series of shares unless expressly
provided by the terms of issue of a class or series, subject to any limitations
prescribed by law, to provide from time to time for the issuance of other
classes or series of shares and, in accordance with applicable procedures of the
Statute, to establish the characteristics of each class or series including,
without limitation, the following:
(a) the number of shares of that class or series, which may
subsequently be increased or decreased (but not below the number of shares
of that class or series then in issue) by resolution of the Board of
Directors, and the distinctive designation thereof;
(b) the voting powers, full or limited, if any, of the shares of that
class or series, including without limitation, the authority to confer
multiple votes per share, voting rights as to specified matters or issues
such as mergers, consolidations or sales of assets, or voting rights to be
exercised either together with holders of Ordinary Shares as a single
class, or independently as a separate class;
(c) the rights in respect of dividends, if any, on the shares of that
class or series; the rate at which such dividends shall be payable and/or
cumulate, which rate may be determined on factors external to the Company
and which dividends may be payable in cash, shares of capital or other
securities or property of the Company; whether dividends shall be
cumulative and, if so, from which date or dates; the relative rights or
priority, if any, of payment of dividends on shares of that class or
series; and any limitation, restrictions or conditions on the payment of
dividends;
(d) the relative amounts, and the relative rights or priority, if any,
of payment in respect of shares of that class or series, which the holder
of the shares of that class or series shall be entitled to receive upon any
liquidation, dissolution or winding up of the Company;
(e) any redemption, repurchase, retirement and sinking fund rights,
preferences and limitations of that class or series, the amount payable on
shares of that class or series in the event of such redemption, repurchase
or retirement, the terms and conditions of any sinking fund, the manner of
creating such fund or funds and whether any of the foregoing shall be
cumulative or non-cumulative;
(f) the terms, if any, upon which the shares of that class or series
shall be convertible into or exchangeable for shares of any other classes,
series, or other securities, whether or not issued by the Company;
(g) the restrictions, limitations and conditions, if any, upon
issuance of indebtedness of the Company so long as any shares of that class
or series are in issue; and
(h) any other preferences and relative, participating, optional or
other rights and limitations not inconsistent with applicable law.
VI. VARIATION OF RIGHTS OF SHARES
6.1 (a) If at any time the share capital of the Company is divided into
different classes or series of shares, the rights attached to any class or
series (unless otherwise provided by the terms of issue of the shares of that
class) may, whether or not the Company is being wound-up, be varied and amended
with
4
the consent in writing of the holders of all of the issued shares of that class
or series, or with the sanction of a Special Resolution passed at a separate
general meeting of the holders of such class or series.
(b) The provisions of these Articles relating to general meetings of the
Company shall apply to every such separate general meeting of the holders of one
class or series of shares (unless otherwise expressly provided by the terms of
issue of the shares of that class or series).
(c) Separate general meetings of the holders of a class or series of shares
or the seeking of a consent of the holders of a class or series of shares may
only be called at the direction of the Board of Directors (unless otherwise
expressly provided by the terms of issue of the shares of that class or series).
Nothing in this Article VI gives any Member or group of Members the right to
call a class or series meeting or demand a class or series vote or consent.
6.2 The rights conferred upon the holders of the shares of any class or
series issued with preferred or other rights shall not, unless otherwise
expressly provided by the terms of issue of the shares of that class or series,
be deemed to be varied by the creation or issue of further shares ranking in any
respect prior to or pari passu therewith. The rights of the holders of Ordinary
Shares shall not be deemed to be varied by the creation or issue of shares with
preferred or other rights, which may be effected by the Board of Directors as
provided in these Articles without any vote or consent of the holders of
Ordinary Shares.
VII. REDEMPTION AND REPURCHASE
7.1 The Ordinary Shares are not redeemable by the Company or the holder.
Subject as set out herein, the Company is authorized to purchase any issued
Ordinary Shares in such circumstances, on such terms and in any such manner as
shall be agreed by the Company and the holder thereof, subject always to the
laws of the Cayman Islands. Without limiting the foregoing, the Company may,
from time to time, upon the agreement of a Member, purchase all or part of the
Ordinary Shares of any such Member, whether or not the Company has made a
similar offer to all or any of the other Members.
VIII. TRANSFER OF SHARES
8.1 Transfers of shares shall be registered on the records maintained by
or on behalf of the Company for such purpose upon (i) surrender to the Company
or its transfer agent of a certificate or certificates representing the shares
requested to be transferred, the transfer provisions on the certificate or
certificates being duly completed or on a separate accompanying transfer in such
form as the Board of Directors approves, together with such evidence of the
payment of transfer taxes and compliance with other provisions of law as the
Company or its transfer agent may require, or (ii) if shares are not represented
by certificates, upon compliance with such transfer procedures as may be
approved by the Board of Directors or prescribed by applicable law.
8.2 Subject to the rules of any stock exchange on which the shares in
question may be listed and except as otherwise expressly provided by the terms
of issue of the shares of any class or series, the Board of Directors may, in
its absolute discretion and without assigning any reason therefore, decline to
register any transfer of any share. The registration of transfers may be
suspended at such times and for such periods as the Board of Directors may from
time to time determine provided always that such registration shall not be
suspended for more than 30 days in any year.
IX. NONRECOGNITION OF TRUSTS
9.1 The Company shall be entitled to treat the holder of record of any
share as the holder in fact thereof and accordingly shall not be bound to
recognize any equitable or other claim to or interest in such share on the part
of any other person, whether or not it shall have express or other notice
thereof, except as expressly provided by law. The Company shall not be required
to recognize any person as holding any share upon any trust, and the Company
shall not be bound by or be compelled in any way to recognize (even when having
notice thereof) any equitable, contingent, future or partial interest in any
share, any
5
interest in any fractional part of a share (subject to Article 3.5), or (except
only as is otherwise provided by these Articles or the Statute) any other rights
in respect of any share except an absolute right to the entirety thereof in the
registered holder.
X. TRANSMISSION OF SHARES ON DEATH OR BANKRUPTCY
10.1 In case of the death of a Member who is a natural person, the
survivor or survivors, where the deceased was a joint holder, and the legal
personal representatives of the deceased, where he was a sole holder, shall be
the only persons recognized by the Company as having any title to his interest
in the shares.
10.2 (a) Any person becoming entitled to a share in consequence of the
death or bankruptcy of a Member (or in any other way than by transfer) may, upon
such evidence being produced as may from time to time be required by the Board
of Directors and subject as hereinafter provided, elect either to be registered
himself as holder of the share or to make such transfer of the share to such
other person nominated by him as the deceased or bankrupt person could have made
and to have such person registered as the transferee thereof, but the Board of
Directors shall, in either case, have the same right to decline or suspend
registration as they would have had in the case of a transfer of the share by
that Member before his death or bankruptcy, as the case may be.
(b) If the person so becoming entitled shall elect to be registered himself
as holder he shall deliver or send to the Company a notice in writing signed by
him stating that he so elects.
10.3 A person becoming entitled to a share by reason of the death or
bankruptcy of the holder (or in any other case than by transfer) 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 Member 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; provided, however, that the Board of Directors may at
any time give notice requiring any such person to elect either to be registered
himself or to transfer the share and if the notice is not complied with within
90 days the Board of Directors may thereafter withhold payment of all dividends,
bonuses or other monies payable in respect of the share until the requirements
of the notice have been complied with.
XI. AMENDMENT OF MEMORANDUM OF ASSOCIATION, CHANGE OF
LOCATION OF REGISTERED OFFICE AND ALTERATION OF CAPITAL
11.1 (a) Subject to and insofar as permitted by the provisions of the
Statute, the Company may from time to time by Special Resolution alter or amend
the Memorandum and, without restricting the generality of the foregoing, the
Company may by Ordinary Resolution:
(i) increase the share capital by such sum to be divided into shares
of such amount or without nominal or par value as the resolution shall
prescribe;
(ii) consolidate all or any of its share capital into shares of larger
amount than its existing shares;
(iii) by subdivision of all of its existing shares or any class or
series of shares, divide the whole or any part of its share capital into
shares of smaller amount than is fixed by the Memorandum; or
(iv) cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any person or
reserved for issue by the Board of Directors.
(b) All new shares created hereunder shall be subject to the same
provisions with reference to the payment of calls, liens, transfer,
transmission, forfeiture and otherwise as the shares in the original share
capital.
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(c) Subject to the provisions of the Statute, the Company may by Special
Resolution reduce its share capital or any capital redemption reserve fund.
11.2 Subject to the provisions of the Statute, the Company may by Special
Resolution change its name.
11.3 Subject to the provisions of the Statute, the Board of Directors may
change the location of the Company's registered office.
XII. CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
12.1 For the purpose of determining Members entitled to notice of or to
vote at any general meeting of the Company or any adjournment thereof, or
Members entitled to receive payment of any dividend or other distribution or
allotment of any rights of the Members entitled to exercise any rights in
respect of any charge, change, conversion or exchange of shares or for the
purpose of any other lawful action, the Board of Directors may provide that the
Register shall be closed for transfers for a stated period.
12.2 In lieu of or apart from closing the Register, the Board of Directors
may fix in advance a date as the record date for any such determination of
Members entitled to notice of or to vote at a general meeting of the Company.
For the purpose of determining the Members entitled to receive payment of any
dividend or other distribution or allotment of any rights of the Members
entitled to exercise any rights in respect of any charge, change, conversion or
exchange of shares, or for the purpose of any other lawful action, the Board of
Directors may, at or within 90 days prior to the date of declaration of such
dividend or other action, fix a subsequent date no later than the date of
declaration as the record date for such determination.
12.3 If the Register is not so closed and no record date is fixed for the
determination of Members entitled to notice of or to vote at a general meeting
of the Company, the date preceding the day on which notice of the meeting is
given or if notice is waived, at the close of business on the day preceding the
day on which the meeting is held shall be the record date for such determination
of Members. When a determination for Members entitled to vote at any general
meeting of the Company has been made as provided in this Article XII, such
determination shall apply to any adjournment thereof; provided, however, that
the Board of Directors may fix a new record date for the adjourned meeting.
12.4 If the Register is not so closed and no record date is fixed for the
determination of Members entitled to receive payment of any dividend or other
distribution or allotment of any rights of the Members entitled to exercise any
rights in respect of any charge, change, conversion or exchange of shares, or
for the purpose of any other lawful action (other than as specified in Article
12.3), the record date for determining the Members for any such purpose shall be
the close of business on the day in which the Board of Directors adopts the
resolution relating thereto.
XIII. VOTING
13.1 Subject to the rights of holders of any class or series of shares
(including those rights attaching to the Special Voting Stock, Series 1 and
Special Voting Stock, Series 2 as set forth in Articles 4.2 and 4.3 hereof):
(a) at each election for Directors at a general meeting of the Company
the Directors shall be elected by a plurality of the votes cast in person
or by proxy at that general meeting and each Member holding Ordinary Shares
shall have the right to vote, in person or by proxy, the number of Ordinary
Shares registered in his name in the Register for as many persons as there
are Directors to be elected and for whose election he has a right to vote.
Cumulative voting, for the election of Directors, is expressly prohibited.
Election of Directors need not be by ballot; and
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(b) on all matters coming before the Members at a general meeting of
the Company, other than the election of Directors, each Member holding
Ordinary Shares shall have the right to vote, in person or by proxy, one
vote for each issued Ordinary Share registered in his name in the Register.
XIV. GENERAL MEETINGS
14.1 (a) The Company may in each year of its existence hold a general
meeting of the Company as its annual general meeting. The annual general meeting
may be held on such date and at such time and place as the Board of Directors
may appoint. At each annual general meeting, elections may be held for Directors
whose terms have expired and such other business may be transacted as may
properly be brought before such meeting.
(b) At each annual general meeting of the Company, the Directors to be
elected at that meeting may be elected by single resolution for the applicable
term or until their respective successors have been elected.
14.2 (a) Except as otherwise required by law, and subject to the rights of
any class or series of shares having a preference over the Ordinary Shares as to
dividends or to elect Directors in specified circumstances, extraordinary
general meetings of the Company may be called only by resolution of the Board of
Directors, approved by at least a majority of the entire Board of Directors.
(b) Any action required or permitted to be taken by the Members whether
pursuant to these Articles or by law, must be taken at a duly called annual or
extraordinary general meeting of the Company unless the written consent or
approval of all holders of issued shares generally entitled to vote has been
obtained with respect to such action.
14.3 Subject to the provisions of applicable law, no Member shall have any
right to requisition a general meeting of the Company.
XV. NOTICE OF GENERAL MEETINGS
15.1 Written notice of each general meeting of the Company stating the
place, date and time of the meeting shall be given not less than 10 (or such
greater number of days as may be required by the Statute) nor more than 60 days
before the date of the meeting to each Member entitled to vote at such meeting.
The notice of each general meeting of the Company shall state the purpose or
purposes for which the meeting is called and the means of remote communications,
if any, by which Members and proxyholders may be deemed to be present and vote
at such meetings. The business at an annual general meeting of the Company shall
be limited in the manner set out in Article 16.2(c). No business shall be
transacted at any extraordinary general meeting of the Company except as stated
in the notice.
15.2 The accidental omission to give notice of a general meeting of the
Company to, or the nonreceipt of notice of such a meeting by, any person
entitled to receive notice shall not invalidate the proceedings of that meeting.
XVI. PROCEEDINGS AT GENERAL MEETINGS
16.1 No business shall be transacted at any general meeting of the Company
unless a quorum of Members is present at the time when the meeting proceeds to
business. At a general meeting of the Company to:
(a) consider or adopt a Special Resolution to amend, vary, suspend the
operation of or disapply Articles 14, 15, 16, 18.1, 23 or 24 (other than a
Special Resolution referred to in Article 16.1(b)),
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one or more Members present in person or by proxy holding at least 95
percent of the issued shares entitled to vote at such meeting shall be a
quorum unless:
(i) a majority of the Board of Directors has at, or at any time
prior to, the meeting recommended to the Members entitled to vote at
such meeting, to vote in favor of such Special Resolution; and
(ii) in the case of a Special Resolution to amend, vary, suspend
the operation of or disapply Article 24 (other than a Special Resolution
referred to in Article 16.1(b)), such Board of Directors' recommendation
is made at a time where a majority of the Board of Directors then in
office (but not less than one) were Directors prior to any person
becoming an Interested Member (as defined in Article 24) during the
previous three years or were recommended for election or elected to
succeed such Directors by a majority of such Directors, in which case
one or more Members present in person or by proxy holding at least a
majority of the issued shares entitled to vote at such meeting shall be
a quorum;
(b) consider or adopt a Special Resolution to delete Article 24 on the
conditions that (i) such resolution shall not be effective until 12 months
after the passing of such resolution and (ii) the restriction in Article 24
shall otherwise continue to apply to any Business Combination between the
Company and any person who became an Interested Member on or prior to the
passing of such resolution, one or more Members present in person or by
proxy holding at least a majority of the issued shares entitled to vote at
such meeting shall be a quorum; and
(c) consider or adopt any other resolution or to take any other
action, one or more Members present in person or by proxy holding at least
a majority of the issued shares generally entitled to vote at such meeting
shall be a quorum.
The Members present at a duly constituted general meeting of the Company
may continue to transact business until adjournment, despite the withdrawal of
such Members as leave less than a quorum.
16.2 (a) Subject to the rights of holders of any class of shares to the
contrary, nominations for election of Directors at any general meeting of the
Company may be made either by the Board of Directors or by any Member entitled
to vote for the election of Directors who gives advance notice as hereafter
provided. Any such Member may nominate persons for election as Directors only if
written notice of such Member's intent to make such nomination is transmitted
to, and received by, the Secretary at the principal executive offices of the
Company not later than (i) in the case of an annual general meeting of the
Company, not less than 90 days prior to the anniversary of the date of the
immediately preceding annual general meeting that was specified in the initial
formal notice of such meeting (but if the date of the forthcoming annual general
meeting is more than 30 days before or after such anniversary date, such written
notice must instead be received by the Secretary by the close of business on the
10th day following the date on which the Company first makes public disclosure
of the meeting date) and (ii) in the case of an extraordinary general meeting of
the Company (provided that the Board of Directors has determined that Directors
shall be elected at such meeting), the close of business on the 10th day
following the date on which the Company first makes public disclosure of the
meeting date; provided, however, that the Company must receive such notice by
, 2003 for nominations brought before the initial annual general
meeting of the Company to be held in 2003. Each notice given by such Member
shall set forth: (i) the name and address of the Member who intends to make the
nomination and of the person or persons to be nominated; (ii) a representation
that the Member is a registered holder of shares entitled to vote at such
meeting (or if the record date for such meeting is subsequent to the date
required for such Member notice, a representation that the Member is such a
registered holder at the time of such notice and intends to be a registered
holder on the date for such meeting), and setting forth the class and number of
shares so held (including shares held beneficially); (iii) a representation that
such Member intends to appear in person or by proxy as a registered holder of
shares at the meeting to nominate the person or persons specified in the notice;
(iv) a description of all arrangements or understandings between such Member and
any other person or persons (identifying such person or persons) pursuant to
which the nomination or nominations are to be made by the Member; (v) such other
information regarding each
9
nominee proposed by such Member as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission of the United States of America; and (vi) the consent of each nominee
to serve as a director of the Company if so elected.
(b) If the facts show that a nomination was not made in accordance with the
provisions of Article 16.2(a), the presiding officer of the general meeting
shall so determine and declare to the meeting, whereupon the defective
nomination shall be disregarded. Public disclosure of the date of a forthcoming
general meeting may be made by the Company for purpose of this Article 16.2 not
only by the giving of the formal notice of the meeting, but also (i) by notice
to a national securities exchange (as such term is used in the Securities
Exchange Act of 1934, as amended of the United States of America (the "Exchange
Act"), or to the National Association of Securities Dealers, Inc. (if the
Ordinary Shares are then listed on such exchange or quoted on NASDAQ), (ii) by
filing a report under Article 13 or 15(d) of the Exchange Act (if the Company is
then subject thereto) or (iii) by a mailing to Members or by issuance of a
general press release.
(c) No business shall be transacted at an annual general meeting of the
Company other than such business as shall be (i) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (ii) otherwise properly brought before the meeting by or at the
direction of the Board of Directors or (iii) brought before the meeting by a
Member present and entitled to vote at such meeting in accordance with the
following procedure. For business to be brought before an annual general meeting
of the Company by a Member, the Member must have given timely notice in writing
to the Secretary. To be timely, a Member's notice must be transmitted to, and
received by, the Secretary at the principal executive offices of the Company not
less than 90 days prior to the anniversary of the date of the immediately
preceding annual general meeting that was specified in the initial formal notice
of such meeting (but if the date of the forthcoming annual general meeting is
more than 30 days before or after such anniversary date, such written notice
must instead be received by the Secretary by the close of business on the 10th
day following the date on which the Company first makes public disclosure of the
meeting date); provided, however, that the Company must receive such notice by
, 2003 for business brought before the initial annual general meeting
of the Company to be held in 2003. Each such notice given by such Member must
set forth: (i) a brief description of the business desired to be brought before
the meeting and the reasons for conducting such business at the meeting; (ii)
the name and address of the Member who intends to propose such business; (iii) a
representation that the Member is a registered holder of shares entitled to vote
at such meeting (or if the record date for such meeting is subsequent to the
date required for such Member notice, a representation that the Member is a
registered holder at the time of such notice and intends to be a registered
holder on the date of such meeting) and intends to appear in person or by proxy
at such meeting to propose such business; and (iv) any material interest of the
Member in such business. The presiding officer of the meeting may refuse to
transact any business at any meeting made without compliance with the foregoing
procedure.
(d) Notwithstanding the provisions of Article 16.2, a Member also shall
comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in Article 16.2.
Nothing in Article 16.2 shall be deemed to affect any rights of Members to
request inclusion of proposals in the Company's proxy statement, if one shall be
necessary, pursuant to Rule 14a-8 under the Exchange Act.
16.3 (a) Meetings of Members may be held at such place, either within or
without the Cayman Islands, as may be designated by or in the manner provided
herein or, if not so designated, as determined by the Board of Directors. If,
pursuant to these Articles the Board of Directors is authorized to determine the
place of a meeting of Members, the Board of Directors may, in its sole
discretion, determine that the meeting shall not be held at any place, but may
instead be held solely by means of remote communication as follows.
(b) If authorized by the Board of Directors in its sole discretion, and
subject to such guidelines and procedures as the Board of Directors may adopt,
Members and proxyholders entitled to attend and vote but not physically present
at a meeting of Members may, by means of remote communication:
10
(A) participate in a meeting of Members; and
(B) be deemed present in person and vote at a meeting of Members
whether such meeting is to be held at a designated place or solely by means
of remote communication, provided that (i) the Company shall implement
reasonable measures to verify that each person deemed present and permitted
to vote at the meeting by means of remote communication is a Member or
proxyholder, (ii) the Company shall implement reasonable measures to
provide such Members and proxyholders a reasonable opportunity to
participate in the meeting and to vote on matters submitted to the Members,
including an opportunity to read or hear the proceedings of the meeting of
substantially concurrently with such proceedings, and (iii) if any Member
or proxyholder votes or takes other action at the meeting by means of
remote communication, a record of such vote or other action shall be
maintained by the Company.
(c) If authorized by the Board of Directors, any vote taken by written
ballot shall 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 Member or proxyholder.
16.4 The Chairman of the Board of Directors appointed by the Board of
Directors prior to the relevant general meeting of the Company or, in his
absence, a person designated by the Chairman of the Board of Directors, or if no
person is so designated, a person designated by the Board of Directors shall
preside at any meeting of the Members and determine the order of business and
all other matters relating to the conduct of the meeting.
16.5 The presiding officer of any meeting of the Members shall have the
power to prescribe such rules, regulations and procedures and to do all such
things as in his judgment may be necessary or desirable for the proper conduct
of the meeting, including, without limitation, the establishment of procedures
for the maintenance of order and safety, the right of Directors, Members and
others to speak, limitations on the time allotted to questions or comments,
restrictions on entry to the meeting after the time scheduled for the
commencement thereof and the opening and closing of the voting polls.
16.6 The presiding officer may adjourn the 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 general meeting is adjourned for 60 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 general meeting.
16.7 In the case of joint registered holders, the vote of the senior
holder who tenders a vote, whether in person or by proxy, shall be accepted to
the exclusion of the votes of the other joint holders, and for this purpose
seniority shall be determined by the order in which the names stand in the
Register.
16.8 No Member shall be entitled to vote at any general meeting of the
Company unless (a) he is registered as a Member on the record date for such
meeting or holds a valid proxy of such a Member or unless (b) all calls or other
sums presently payable in respect of the shares to be voted have been paid.
16.9 Votes may be given either personally or by proxy.
XVII. PROXIES
17.1 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 legal entity, under the
hand of an officer, attorney or where applicable, trustee duly authorized in
that behalf; provided, however, that a Member 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
which are reasonably designed to verify that such instructions have been
authorized by such Member. A proxy need
11
not be a Member. Each Member entitled to vote at a general meeting of the
Company may authorize another person or persons to act for him by proxy, but no
such proxy shall be voted or acted upon after three years from its date, unless
the proxy specifically provides for a longer period. If an instrument of proxy
designates two or more persons to act as proxies, their acts with respect to
voting shall have the following effect: (a) if only one proxy acts, his acts
bind all; (b) if more than one proxy acts, the act of the majority binds all;
and (c) if more than one acts and a majority do not agree on a particular issue,
each proxy shall be entitled to vote in respect of the same portion of the
shares as such proxy is of the proxies representing such shares.
17.2 The instrument appointing a proxy shall be deposited at the principal
executive offices of the Company or at such other place as is specified for that
purpose in the notice convening the meeting no later than the time for holding
the meeting, or adjourned meeting; provided, however, that the presiding officer
of the meeting may at his discretion direct that an instrument of proxy shall be
deemed to have been duly deposited upon receipt of telephonic, electronic or
facsimile transmission of the validly executed proxy or upon receipt of
telephonic, electronic, telex or cable confirmation from the appointor that the
instrument of proxy duly signed is in the course of transmission to the Company.
17.3 The instrument appointing a proxy may be in any usual or common form
and may be expressed to be for a particular meeting or any adjournment thereof.
17.4 A vote given in accordance with the term of an instrument of proxy
shall be valid notwithstanding the previous death or insanity of the principal
or revocation of the proxy or of the authority under which the proxy was
executed, or the transfer of the share in respect of which the proxy is given
provided that no notice in writing of such death, insanity, revocation or
transfer as aforesaid shall have been received by the Company at its principal
executive offices before the commencement of the general meeting, or adjourned
meeting, at which it is sought to use the proxy.
17.5 Any corporation which is a Member of record of the Company may in
accordance with its articles of association or other governing documents or in
the absence of such provision by resolution of its board of directors or other
governing body authorize one or more persons as it thinks fit to act as its
representative or representatives at any meeting of the Company or Members of
the Company, and the person or persons so authorized shall be entitled to
exercise the same powers on behalf of the corporation which he or they represent
as the corporation could exercise if it were an individual Member of record of
the Company and may cast votes or abstain on any motion in any manner as he or
they may be directed.
XVIII. DIRECTORS
18.1 (a) There shall be a Board of Directors the members of which shall be
any persons elected by the Members in accordance with Article 13.1 or appointed
by the Board of Directors in accordance with this Article XVIII consisting of
not less than two, plus that number of Directors as any one or more class or
series of shares (other than Ordinary Shares) may be entitled to elect, voting
separately by class or series. The Board of Directors shall have the exclusive
power and right to set the exact number of Directors, subject to such minimum
number of directors as set forth herein, from time to time by resolution adopted
by the vote of a majority of the whole Board of Directors.
(b) Directors shall be elected at each annual general meeting of the
Company for a term expiring at the next annual general meeting of the Company
following their election to the Board of Directors and until the election of
their respective successors in office or their earlier death, resignation or
removal.
(c) If the number of Directors is decreased by resolution of the Board of
Directors pursuant to this Article 18.1, in no case shall that decrease or
shorten the term of any incumbent Director.
(d) Any newly created directorship resulting from an increase in the number
of Directors and any other vacancy on the Board of Directors, however caused,
may only be filled by a majority of the Directors then in office, although less
than a quorum, or by a sole remaining Director. Any Director elected by the
Board of Directors to fill a vacancy shall hold office until the next annual
general meeting of the Company
12
following his election to the Board of Directors and until his successor shall
have been elected or until his earlier death, resignation or removal.
(e) One or more or all of the Directors may be removed only for "cause" by
the affirmative vote of the holders of at least a majority of the issued shares
generally entitled to vote, voting together as a single class, at a general
meeting of the Company for which proper notice of the proposed removal has been
given. As used in the preceding sentence, "cause" shall be limited to (i) action
by the Director involving willful malfeasance, which conduct has a material
adverse effect on the Company, or (ii) conviction of the Director of a felony.
The Board of Directors shall not have any power to remove any Director.
(f) Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of shares in issue has the right, voting separately by class
or series, to elect Directors at an annual general meeting or extraordinary
general meeting of the Company, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
provisions of these Articles. The aforesaid Directors and the Directors
otherwise appointed under this Article 18.1 shall together constitute the Board
of Directors from time to time.
18.2 Each Director shall be entitled to receive as compensation for such
Director's services as a Director or committee member or for attendance at
meetings of the Board of Directors or committees, or both, such amounts (if any)
as shall be fixed from time to time by the Board of Directors. Each Director
shall be entitled to reimbursement for reasonable traveling expenses incurred by
such Director in attending any such meeting.
18.3 A Director may hold any other office (other than as an outside
auditor of the Company) or place of profit under the Company 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.
18.4 A Director may act by himself or for his firm in a professional
capacity for the Company (other than as an outside auditor of the Company), and
he or his firm shall be entitled to remuneration for professional services as if
he were not a Director; provided, however, that he has disclosed his interest in
the transaction.
18.5 No membership qualifications for Directors shall be required.
18.6 A Director may be or become a director or other officer of or
otherwise interested in any company promoted by the Company or in which the
Company may be interested as shareholder, member or otherwise, and no such
Director shall be accountable to the Company for any remuneration or other
benefits received by him as a director or officer of, or from his interest in,
such other company.
18.7 No person shall be disqualified from the office of Director or
prevented by such office from contracting with the Company, either as vendor,
purchaser or otherwise, nor shall any such contract or any contract or
transaction entered into by or on behalf of the Company in which any Director
shall be in any way interested or 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 realized by any such contract or transaction by reason of
such Director holding office or of the fiduciary relation thereby established;
provided, however, that he has disclosed his interest in the transaction. A
Director shall be at liberty to vote in respect of any contract or transaction
in which he is so interested as aforesaid; provided, however,that the nature of
the interest of any Director in any such contract or transaction shall be
disclosed by him at or prior to its consideration and any vote thereon.
18.8 A general notice that a Director is a member of any specified firm or
company and is to be regarded as interested in any transaction with such firm or
company shall be sufficient disclosure under Article 18.7 and after such general
notice it shall not be necessary to give special notice relating to any
particular transaction.
18.9 The Directors may exercise all the powers of the Company to provide
pensions or other retirement or superannuation benefits and to provide death or
disability benefits or other allowances or gratuities (by insurance or
otherwise) for a person who is or has at any time been a Director of (a) the
13
Company, (b) a company which is or was an affiliate of the Company, or (c) a
predecessor in business of the Company or of an affiliate of the Company (or, in
each case, for any member of his family, including a spouse or former spouse, or
a person who is or was dependent on him). For this purpose, the Directors may
establish, maintain, subscribe and contribute to any scheme, plan, trust or fund
and pay premiums thereon. The Directors may arrange for this to be done by the
Company alone or in conjunction with another person.
18.10 A Director or former Director is entitled to receive and retain for
his own benefit a pension or other benefit provided under Article 18.9 and is
not obliged to account for it to the Company.
18.11 A Director may appoint any person to act as his proxy at any meeting
of the Board of Directors. Any proxy appointed for the purposes of any such
meeting will have the full authority to vote as provided in such proxy. Such
appointment must be made in writing under the hand of the appointor and may at
any time be revoked in like manner, and notice of every such appointment or
revocation in like manner, and the appointee need not be a Director or Member,
but must furnish the Company with such appointee's address.
XIX. POWERS AND DUTIES OF DIRECTORS
19.1 The business and affairs of the Company shall be managed by the Board
of Directors who may exercise all such powers of the Company and do all such
lawful acts and things as are not from time to time by the Statute or by these
Articles required to be exercised or done by the Company in general meeting.
19.2 The Board of Directors may from time to time and at any time by
powers of attorney appoint any company, firm, person or body of persons, whether
nominated directly or indirectly by the Board of Directors, to be the attorney
or attorneys of the Company for such purpose and with such powers, authorities
and discretions (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 powers of attorney may contain such
provisions for the protection and convenience of persons dealing with any such
attorneys as the Board of Directors may deem fit and may also authorize any such
attorney to delegate all or any of the powers, authorities and discretions
vested in him.
19.3 All checks, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for monies paid to the Company shall be
signed, drawn, accepted, endorsed or otherwise executed as the case may be by
such officer or officers or such other person or persons as the Board of
Directors shall from time to time designate.
19.4 The Board of Directors shall cause minutes to be made for the purpose
of recording the proceedings at all meetings of the Company and the Directors
and of committees of the Board of Directors.
19.5 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 and to issue debentures, debenture stock and other
securities whether outright or as security for any debt, liability or obligation
of the Company or of any third party.
19.6 The Board of Directors may authorize any officer, officers, agent or
agents to enter into any contract or agreement of any nature whatsoever,
including, without limitation, any contract, deed, bond, mortgage, guaranty,
deed of trust, security agreement, pledge agreement, act of pledge, collateral
mortgage, collateral chattel mortgage or any other document or instrument of any
nature whatsoever, and to execute and deliver any such contract, agreement,
document or other instrument of any nature whatsoever for and in the name of and
on behalf of the Company, and such authority may be general or confined to
specific instances.
14
19.7 If, as the result of consolidation and division or subdivision of
shares, Members become entitled to fractions of a share, the Board of Directors
may on behalf of the Members deal with the fractions as it thinks fit. In
particular, the Board of Directors may:
(a) sell fractions of a share to a person (including, subject to the
Statute, to the Company) for the best price reasonably obtainable and
distribute the net proceeds of sale in due proportion amongst the persons
entitled (except that if the amount due to a person is less than US$10, or
such other sum as the Board of Directors may decide, the sum may be
retained for the benefit of the Company) and to give effect to such a sale
the Board of Directors may authorize a person to transfer the shares to the
purchaser or his nominee and may cause the name of the purchaser or his
nominee to be entered in the register as the holder of the shares. The
purchaser is not bound to see to the application of the purchase money and
the title of the transferee to the shares is not affected by an
irregularity or invalidity in the proceedings connected with the sale; or
(b) subject to these Articles, allot or issue to a member credited as
fully paid by way of capitalization the minimum number of shares required
to round up his holding of shares to a number which, following
consolidation and division or subdivision, leaves a whole number of shares
(such allotment or issue being deemed to have been effected immediately
before consolidation or subdivision, as the case may be) and if shares are
so allotted or issued the amount required to pay-up those shares may be
capitalized as the Board of Directors thinks fit out of amounts 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, and applied in paying-up in full the appropriate number
of shares. A resolution of the Board of Directors capitalizing part of the
reserves has the same effect as if the capitalization had been declared by
Ordinary Resolution.
XX. COMMITTEES
20.1 The Board of Directors may, by resolution passed by a majority of the
whole Board of Directors, designate one or more committees, each committee to
consist of one or more of the Directors, as designated by the Board of
Directors. The Board of Directors may designate one or more alternate Directors
as members of any committee, who may replace any absent member at any meeting of
the committee. In the absence of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent member. At all
meetings of any committee, a majority of its members (or the member, if only
one) shall constitute a quorum for the transaction of business, and the act of a
majority of the members present shall be the act of any such committee, unless
otherwise specifically provided by the Statute, the Memorandum, these Articles
or the resolution establishing such committee. The Board of Directors shall have
the power at any time to change the number and members of any such committee, to
fill vacancies and to discharge any such committee.
20.2 Any such committee, to the extent provided in the resolution of the
Board of Directors but subject to any limitations of the Statute, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Company and may authorize the seal
of the Company to be affixed to all papers that may require it. The provisions
herein with respect to notice of meetings of the Board of Directors shall apply
also to meetings of committees, unless different provisions shall be prescribed
by the Board of Directors. Each committee shall serve at the pleasure of the
Board of Directors. It shall keep minutes of its meetings and report the same to
the Board of Directors when required and shall observe such procedures as are
prescribed by the Board of Directors.
20.3 The committees of the Board of Directors may include the Audit
Committee, the Compensation Committee and the Nomination Committee and any other
committees designated by the Board of Directors.
15
XXI. PROCEEDINGS OF DIRECTORS
21.1 Except as otherwise provided by these Articles, the Board of
Directors shall meet together for the dispatch of business, convening,
adjourning and otherwise regulating its meetings as it thinks fit. Questions
arising at any meeting shall be decided by a majority of the Directors present
at a meeting at which there is a quorum.
21.2 Regularly scheduled meetings of the Board of Directors may be held at
such time and at such place as shall from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman of the Board of Directors, any Chief Executive Officer, the
President or a majority of the Directors.
21.3 No notice need be given of any regular meeting of the Board of
Directors or of any adjourned meeting of the Board of Directors. No notice need
be given to any Director who signs a written waiver thereof or who attends the
meeting without protesting the lack of notice. Notices need not state the
purpose of the meeting. Attendance of a Director at any meeting shall constitute
a waiver of notice of such meeting, except when a Director attends and makes it
known that he is attending for the express purpose of objecting to the
transaction of any business on the grounds that the meeting is not lawfully
convened, and such purpose is duly recorded in the minutes of such meeting.
21.4 Notice of each special meeting of the Board of Directors shall be
given to each Director either by first class United States mail at least three
days before the meeting, by "overnight" or other express delivery service at
least two days before the meeting, or by electronic mail, telegram, telex,
cable, telecopy, facsimile, personal written delivery or telephone at least one
day before the meeting. Any notice given by telephone shall be immediately
confirmed by telegram, telex, cable, telecopy or facsimile. Notices are deemed
to have been given: by mail, when deposited in the United States mail with
postage prepaid; by "overnight" or other express delivery service, the day after
sending; by electronic mail, telegram, telex, or cable, at the time of sending;
by telecopy or facsimile, upon receipt of a transmittal confirmation; and by
personal delivery or telephone, at the time of delivery. Written notices shall
be sent to a director at the address designated by such Director for that
purpose or, if none has been so designated, at such director's last known
residence or business address. Without limiting the generality of any provisions
hereof, written notice shall include notice provided by electronic mail.
21.5 The quorum necessary for the transaction of the business of the Board
of Directors shall be a majority of the whole Board of Directors.
21.6 All acts done at any meeting of the Board of Directors or of a
committee of the Board of Directors shall, notwithstanding that it be afterwards
discovered that there was some defect in the appointment of any Director be as
valid as if every such person had been duly appointed and qualified to be a
Director.
21.7 Any one or more members of the Board of Directors or any committee
thereof may participate in a meeting of such Board of Directors or committee by
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
21.8 A resolution in writing (in one or more counterparts) signed by all
the Directors or all the members of a committee of Directors shall be as valid
and effectual as if it had been passed at a meeting of the Board of Directors or
committee, as the case may be, duly convened and held.
XXII. VACATION OF OFFICE OF DIRECTOR
22.1 The office of a Director shall be vacated:
(a) if he gives notice in writing to the Board of Directors or
Secretary that he resigns the office of Director;
(b) if he dies;
16
(c) if he is found to be or becomes of unsound mind; or
(d) if removed pursuant to Article 18.1.
22.2 In the case of a resignation, the resignation shall be effective as
of the date specified in the notice or if not so specified, upon receipt
thereof. Unless otherwise specified in the notice, acceptance shall not be
required to make it effective.
22.3 A resolution of the Board of Directors declaring a Director to have
vacated office under the terms of Article 22.1 is conclusive evidence as to the
fact and grounds of vacation stated in the resolution.
XXIII. CERTAIN BUSINESS COMBINATIONS
23.1 In addition to any approval by Members required pursuant to the terms
of any series or class of shares other than Ordinary Shares, the approval of the
holders of at least a majority of the issued shares generally entitled to vote
at a meeting called for such purpose, following approval by the Board of
Directors shall be required in order for the Company "to sell, lease or exchange
all or substantially all of its property or assets" as that phrase is
interpreted for the purposes of Section 271 of the
Delaware General Corporation
Law, as amended or re-enacted from time to time, of the United States of
America, provided that the foregoing approval by Members shall not apply to any
such transaction of the Company with any entity which the Company, "directly or
indirectly controls" as that phrase is defined in Rule 405 under the Securities
Act of 1933, as amended or re-enacted from time to time, of the United States of
America.
XXIV. BUSINESS COMBINATIONS WITH INTERESTED MEMBERS
24.1 The Company shall not engage in any Business Combination with any
Interested Member for a period of three years following the time that such
Member became an Interested Member, unless, at or subsequent to such time, the
Business Combination is approved by the Board of Directors and authorized at a
general meeting of the Company by the affirmative vote of at least 66 2/3% of
the issued shares generally entitled to vote which are not Owned by the
Interested Member; provided, however, that the restrictions contained in this
Article 24.1 shall not apply if:
(a) prior to such time that such Member became an Interested Member,
the Board of Directors approved either the Business Combination or the
transaction which resulted in the Member becoming an Interested Member;
(b) upon consummation of the transaction which resulted in the Member
becoming an Interested Member, the Interested Member Owned at least 85% of
the issued shares generally entitled to vote at the time the transaction
commenced, excluding for purposes of determining the number of shares then
in issue, those shares Owned (i) by Persons who are both Directors and
officers of the Company and (ii) employee share plans in which employee
participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange
offer;
(c) the Company does not have a class of voting shares that is (i)
listed on a national securities exchange (as such term is defined in the
Exchange Act), (ii) authorized for quotation on the NASDAQ Stock Market (or
any successor to such stock market) in the United States of America or
(iii) held by more than 2,000 Members, unless any of the foregoing results
from action taken, directly or indirectly, by an Interested Member or from
a transaction in which a Person becomes an Interested Member;
(d) a Member becomes an Interested Member inadvertently and (i) as
soon as practicable divests itself of Ownership of sufficient shares so
that the Member ceases to be an Interested Member and (ii) would not, at
any time within the three-year period immediately prior to a Business
17
Combination between the Company and such Member, have been an Interested
Member but for the inadvertent acquisition of Ownership;
(e) the Business Combination is proposed prior to the consummation or
abandonment of and subsequent to the earlier of the public announcement or
the notice required hereunder of a proposed transaction which (i)
constitutes one of the transactions described in the second sentence of
this Article 24.1(e); (ii) is with or by a person who either was not an
Interested Member during the previous three years or who became an
Interested Member with the approval of the Board of Directors or during the
period described in Article 24.1(f); and (iii) is approved or not opposed
by a majority of the members of the Board of Directors then in office (but
not less than one) who were Directors prior to any person becoming an
Interested Member during the previous three years or were recommended for
election or elected to succeed such Directors by a majority of such
Directors. The proposed transactions referred to in the preceding sentence
are limited to (y) a sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions), whether
as part of a dissolution or otherwise, of assets of the Company or of any
direct or indirect majority-Owned subsidiary of the Company (other than to
any direct or indirect wholly Owned subsidiary or to the Company) having an
aggregate market value equal to 50% or more of either that aggregate market
value of all of the assets of the Company determined on a consolidated
basis or the aggregate market value of all the issued shares or (z) a
proposed tender or exchange offer for 50% or more of the voting shares then
in issue. The Company shall give not less than 20 days' notice to all
Interested Members prior to the consummation of any of the transactions
described in clause (y) of the second sentence of this Article 24.1(e);
(f) the Business Combination is with an Interested Member who became
an Interested Member at a time when the restrictions contained in Article
24.1(e) did not apply by reason of Article 24.1(c);
(g) As used in this Article 24.1, the term:
(i) "Affiliate" means a person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, another person.
(ii) "Associate," when used to indicate a relationship with any
person, means (A) any corporation, partnership, unincorporated
association or other entity of which such person is a director, officer
or partner or is, directly or indirectly, the Owner of 20% or more of
any class of voting shares, (B) any trust or other estate in which such
person has at least a 20% beneficial interest or as to which such person
serves as trustee or in a similar fiduciary capacity and (C) any
relative or spouse of such person, or any relative of such spouse, who
has the same residence as such person.
(iii) "Business Combination," when used in reference to the Company
and any Interested Member of the Company, means:
(A) any merger or consolidation of any direct or indirect
majority-Owned subsidiary of the Company with (1) the Interested
Member or (2) with any other corporation, partnership, unincorporated
association or other entity if the merger or consolidation is caused
by the Interested Member and as a result of such merger or
consolidation Article 24.1 is not applicable to the surviving entity;
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions),
except proportionately as a Member, to or with the Interested Member,
whether as part of a dissolution or otherwise, of assets of the
Company or of any direct or indirect majority-Owned subsidiary of the
Company which assets have an aggregate market value equal to 10% or
more of either the aggregate market value of all the assets of the
Company determined on a consolidated basis or the aggregate market
value of all the shares then in issue;
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(C) any transaction which results in the issuance or transfer by
the Company or by any direct or indirect majority-Owned subsidiary of
the Company of any shares or shares of such subsidiary to the
Interested Member, except (1) pursuant to the exercise, exchange or
conversion of securities exercisable for, exchangeable for or
convertible into shares or the shares of a direct or indirect
majority-Owned subsidiary of the Company which securities were in
issue prior to the time that the Interested Member became such; (2)
pursuant to a Holding Company Merger; (3) pursuant to a dividend or
distribution paid or made, or the exercise, exchange or conversion of
securities exercisable for, exchangeable for or convertible into
shares or the shares of a direct or indirect majority-Owned
subsidiary of the Company which security is distributed, pro rata, to
all holders of a class or series of shares subsequent to the time the
Interested Member became such; (4) pursuant to an exchange offer by
the Company to purchase shares made on the same terms to all holders
of said shares; or (5) any issuance or transfer of shares by the
Company; provided, however, that in no case under (3)-(5) above shall
there be an increase in the Interested Member's proportionate
interest in the shares of any class or series or of the voting
shares;
(D) any transaction involving the Company or any direct or
indirect majority-Owned subsidiary of the Company which has the
effect, directly or indirectly, of increasing the proportionate
interest of the shares of any class or series, or securities
convertible into the shares of any class or series, or of the
interest of the shares of any such subsidiary which is Owned by the
Interested Member, except as a result of immaterial changes due to
fractional share adjustments or as a result of any purchase or
redemption of any shares not caused, directly or indirectly, by the
Interested Member; or
(E) any receipt by the Interested Member of the benefit,
directly or indirectly (except proportionately as a Member), of any
loans, advances, guarantees, pledges or other financial benefits
(other than those expressly permitted in subsections (A)-(D) of this
Article 24.1(g)(iii)) provided by or through the Company or any
direct or indirect majority-Owned subsidiary of the Company.
(iv) "control," including the terms "controlling," "controlled by"
and "under common control with," means the possession, direct or
indirect, of the power to direct or cause the direction of the
management and policies of a person, whether through the Ownership of
voting shares, by contract, or otherwise. A person who is the Owner of
20% or more of the issued or outstanding voting shares of any
corporation, partnership, unincorporated association or other entity
shall be presumed to have control of such entity, in the absence of
proof by a preponderance of the evidence to the contrary.
Notwithstanding the foregoing, a presumption of control shall not apply
where such person holds voting shares, in good faith and not for the
purpose of circumventing this section, as an agent, bank, broker,
nominee, custodian or trustee for one or more Owners who do not
individually or as a group have control of such entity.
(v) "Interested Member" means any person (other than the Company
and any direct or indirect majority-Owned subsidiary of the Company)
that (A) is the Owner of 15% or more of the issued voting shares or (B)
is an Affiliate or Associate of the Company and was the Owner of 15% or
more of the issued voting shares at any time within the three-year
period immediately prior to the date on which it is sought to be
determined whether such person is an Interested Member, and also the
Affiliates and Associates of such person; provided, however, that the
term "Interested Member" shall not include any person whose Ownership of
shares in excess of the 15% limitation set forth herein is the result of
action taken solely by the Company; provided that such person shall be
an Interested Member if thereafter such person acquires additional
voting shares, except as a result of further corporate action not
caused, directly or indirectly, by such person. For the purpose of
determining whether a person is an Interested Member, the voting shares
deemed to be in issue shall include shares deemed to be Owned by the
person but shall not include any other unissued shares which may be
issuable pursuant to any agreement,
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arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(vi) "merger or consolidation" shall be construed in accordance
with Section 203 of the
Delaware General Corporation Law (as amended or
re-enacted from time to time) of the United States of America.
(vii) "Owner" including the terms "Own," "Owned" and "Ownership"
when used with respect to any shares means a person that individually or
with or through any of its Affiliates or Associates:
(A) beneficially Owns such shares, directly or indirectly;
(B) has (1) the right to acquire such shares (whether such right
is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding, or upon the
exercise of conversion rights, exchange rights, warrants or options,
or otherwise; provided, however, that a person shall not be deemed
the Owner of shares tendered pursuant to a tender or exchange offer
made by such person or any of such person's Affiliates or Associates
until such tendered shares is accepted for purchase or exchange; or
(2) the right to vote such shares pursuant to any agreement,
arrangement or understanding; provided, however, that a person shall
not be deemed the Owner of any shares because of such person's right
to vote such shares if the agreement, arrangement or understanding to
vote such shares arises solely from a revocable proxy or consent
given in response to a proxy or consent solicitation made to 10 or
more persons; or
(C) has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting (except voting pursuant to a
revocable proxy or consent as described in Article
24.1(g)(vii)(B)(2)), or disposing of such shares with any other
person that beneficially Owns, or whose Affiliates or Associates
beneficially Own, directly or indirectly, such shares.
(viii) "voting shares" means, with respect to the Company or any
other corporation, shares or stock of any class or series which entitles
the holder to vote generally in the election of directors and, with
respect to any other entity that is not a corporation, any equity
interest which entitles the holder to vote generally in the election of
the governing body of such entity.
XXV. SEAL
25.1 The Board of Directors may adopt a seal, alter the seal at its
pleasure and authorize it to be used by causing it or a facsimile to be affixed
or impressed or reproduced in any other manner.
XXVI. OFFICERS
26.1 The officers of the Company shall be chosen by the Board of Directors
and shall include a President and a Secretary and may also include a Chief
Executive Officer or Officers, a Chairman of the Board of Directors, a Vice
Chairman of the Board of Directors, one or more Vice Presidents (who may be
further classified by such descriptions as "Executive," "Senior" or "Assistant"
as determined by the Board of Directors), and such other officers, as the Board
of Directors may deem necessary or appropriate. The Board of Directors may from
time to time authorize any officer to appoint and remove any other officer or
agent and to prescribe such person's authority and duties. Any person may hold
at one time two or more offices. Each officer shall have such authority and
perform such duties, in addition to those specified in these Articles, as may be
prescribed by the Board of Directors from time to time.
26.2 Each officer shall hold office for the term for which elected or
appointed by the Board of Directors, and until the person's successor has been
elected or appointed and qualified or until such person's earlier resignation or
removal. Any officer may be removed by the Board of Directors, with or
20
without cause. The election or appointment of an officer shall not in and of
itself create contractual rights against the Company. Any officer may resign at
any time by giving written notice to the Board of Directors or the Secretary.
Any such resignation shall take effect at the time specified therein or, if such
time is not specified therein, then upon receipt of such notice; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
26.3 The Chairman of the Board of Directors shall be a member of the Board
of Directors. The Chairman of the Board of Directors shall preside at all
meetings of the Board of Directors. If the Chairman of the Board of Directors is
not present, a Vice Chairman, if any, shall preside at such meeting.
26.4 Unless otherwise determined by the Board of Directors, the Chief
Executive Officer shall be responsible for the day-to-day management of the
business and affairs of the Company (but subject to the control of the Board of
Directors) and shall enjoy all other powers commonly incident to the office. If
so directed by the Board of Directors, more than one individual may concurrently
serve as Co-Chief Executive Officer of the Company.
26.5 Each of the Vice Presidents shall have such authority and perform
such duties as may be prescribed from time to time by the Board of Directors.
26.6 The Secretary shall keep the minutes of the meetings of the Members
and the Board of Directors and give notice of such meetings and shall perform
like duties for the committees of the Board of Directors when so required. The
Secretary shall have custody of the seal and affix and attest the seal to any
instrument to be executed under seal and enjoy all powers commonly incident to
the office. In the case of the absence or inability to act of the Secretary, any
Assistant Secretary (or, in the case of keeping minutes of a meeting of Members
or Directors, any other person designated by the presiding officer of such
meeting) may act in the Secretary's place.
26.7 Compensation of officers, agents and employees of the Company shall
be fixed from time to time by, or under the authority of, the Board of
Directors.
XXVII. DIVIDENDS AND RESERVES
27.1 Subject to the Statute and any rights and restrictions for the time
being attached to any class or series of shares, the Board of Directors may from
time to time declare dividends (including interim dividends) on the shares
issued and authorize payment of the same out of the funds of the Company
lawfully available therefor.
27.2 Subject to the Statute and any rights and restrictions for the time
being attached to any class or series of shares, all dividends shall be declared
and paid according to the amounts paid or credited as paid on the shares in
respect of which the dividend is paid. Subject to the Statute and any rights and
restrictions for the time being attached to any class or series of shares, all
dividends shall be apportioned and paid proportionately to the amounts paid or
credited as paid on the shares during any portion or portions of the period in
respect of which the dividend is paid but if any share is issued on terms
providing that it shall rank for dividend as from a particular date such share
shall rank for dividend accordingly.
27.3 If several persons are registered as joint holders of any share, any
of them may give effectual receipts for any dividends, bonuses or other moneys
payable on or in respect of the share.
27.4 The Board of Directors may deduct from any dividend payable to any
Member all sums of money (if any) presently payable by him to the Company.
27.5 The Board of Directors may declare that any dividend be paid wholly
or partly by the distribution of shares or other securities of the Company
and/or specific assets and in particular of shares, debentures or debenture
stock of any other company or in any one or more of such ways, and where any
difficulty arises in regard to such distribution, the Board of Directors may
settle the same as it deems expedient and in particular may issue fractional
shares and fix the value for distribution of such specific assets or any part
thereof and may determine that cash payments shall be made to any Members upon
the
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footing of the value so fixed in order to adjust the rights of all Members and
may vest any such specific assets in trustees as may seem expedient to the Board
of Directors.
27.6 No dividend shall bear interest against the Company unless expressly
authorized by the Board of Directors.
XXVIII. CAPITALIZATION
28.1 The Company may upon the recommendation of the Board of Directors
capitalize any sum standing to the credit of any of the Company's reserve
accounts (including share premium account and capital redemption reserve fund)
or any sum standing to the credit of profit and loss account or otherwise
available for distribution and to appropriate such sum to Members in the
proportions in which such sum would have been divisible amongst them had the
same been a distribution of profits by way of dividend and to apply such sum on
their behalf in paying up in full unissued shares (not being redeemable shares)
for allotment and distribution credited as fully paid up to and amongst them in
the proportion aforesaid. In such event the Board of Directors shall do all acts
and things required to give effect to such capitalization, with full power to
the Board of Directors to make such provisions as it thinks fit for the case of
shares becoming distributable in fractions (including provisions whereby the
benefit of fractional entitlements accrue to the Company rather than to the
Members concerned). The Board of Directors may authorize any person to enter on
behalf of all of the Members interested into an agreement with the Company
providing for such capitalization and matters incidental thereto, and any
agreement made under such authority shall be effective and binding on all
concerned.
XXIX. AUDIT
29.1 The accounts relating to the Company's affairs shall be audited in
such manner, if at all, as may be determined from time to time by the Board of
Directors.
XXX. NOTICES
30.1 Notices shall be in writing and may be given by the Company to any
Member either by first class United States mail, "overnight" or other express
delivery service, electronic mail, telegram, telex, cable, telecopy, facsimile
or personal delivery. Notices are deemed to have been given: by mail, three days
after deposited in the United States mail with postage prepaid; by "overnight"
or other express delivery service, the day after sending; by electronic mail,
telegram, telex or cable, at the time of sending; by telecopy or facsimile, upon
receipt of a transmittal confirmation; and by personal delivery, at the time of
delivery.
30.2 A notice may be given by the Company to the person or persons which
the Company has been advised are entitled to a share or shares in consequence of
the death or bankruptcy of a Member by any manner set forth in Article 30.1
addressed to them by name, or by the title of representatives of the deceased,
or trustee of the bankruptcy, or by any like description at the address supplied
for that purpose by the persons claiming to be so entitled.
30.3 A notice may be given by the Company to the joint holders of record
of a share by giving the notice to the joining holder first named on the
Register in respect of the share.
30.4 Notice of every general meeting of the Company shall be given in any
manner hereinbefore authorized to:
(a) every holder of voting shares as shown in the Register as of the
record date for such meeting except that in the case of joint holder the
notice shall be sufficient if given to the joint holder first named in the
Register;
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(b) every person upon whom the ownership of a voting share devolves by
reason of his being a legal personal representative or a trustee in
bankruptcy of a holder of voting shares where such holder but for his death
or bankruptcy would be entitled to receive notice of the meeting; and
(c) except as otherwise required by law or these Articles, no other
person shall be entitled to receive notice of general meetings.
XXXI. LIMITATION OF LIABILITY AND INDEMNITY
31.1 (a) No Director shall be personally liable to the Company or, if any,
its Members for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Company or, if any, to its Members, (ii) for acts or omissions not in good faith
or that involve intentional misconduct or a knowing violation of law or (iii)
for any transaction from which the Director derived an improper personal
benefit.
(b) The Company shall indemnify, to the fullest extent permitted by the
laws of the Cayman Islands as from time to time in effect, if any, any person
who was or is a party or is threatened to be made a party to, or otherwise
requires representation by counsel in connection with, any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (whether or not an action by or in the right of the Company) by
reason of the fact that he is or was a Director or officer of the Company, or,
while serving as a Director or officer of the Company, is or was serving at the
request of the Company, as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity. The right
to indemnification conferred by this Article 31.1 also shall include the right
of such persons to be paid in advance by the Company for their expenses to the
fullest extent permitted by the laws of the Cayman Islands as from time to time
in effect. The right to indemnification conferred on such persons by this
Article 31.1 shall be a contractual right.
(c) Unless otherwise determined by the Board of Directors, the Company
shall indemnify to the fullest extent permitted by the laws of the Cayman
Islands as from time to time in effect, if any, any person who was or is a party
or is threatened to be made a party to, or otherwise requires representation by
counsel in connection with, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (whether or
not an action by or in the right of the Company), by reason of the fact that he
is or was an employee (other than an officer) or agent of the Company, or is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity.
(d) The rights and authority conferred in this Article 31.1 shall not be
exclusive of any other right that any person has or hereafter acquires under any
law, provision of these Articles or the Memorandum, agreement, vote of Members
or of the Board of Directors or otherwise.
(e) Neither the amendment nor repeal of this Article 31.1, nor the adoption
of any provision of the Memorandum or these Articles or of any law inconsistent
with this Article 31.1, shall eliminate or reduce the effect of this Article
31.1 in respect of any acts or omissions occurring prior to such amendment,
repeal or adoption of an inconsistent provision.
XXXII. BOOKS AND RECORDS
32.1 In addition to any rights which may be conferred on Members by
Statute, upon written demand under oath stating the purpose thereof, any Member,
in person or by attorney or other agent, may review for any proper purpose,
during usual hours for business, the books and records of the Company including,
without limitation, the Register. A proper purpose shall mean a purpose
reasonably related to such person's interest as a Member. In every instance
where an attorney or other agent shall be the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
23
such other writing which authorizes the attorney or other agent to so act on
behalf of the Member. The demand under oath shall be directed to the corporation
at its principal executive offices.
The Board of Directors may establish procedures for, or limitations or
conditions on, Members' review of books and records of the Company for the
purpose of (a) protecting the interests of the Company, (b) protecting the
confidentiality of the information contained in those books and records, (c) the
convenience of the Company, or (d) protecting any other interest of the Company
that the Board of Directors deems proper.
XXXIII. WINDING UP
33.1 In the event of any dissolution, liquidation or winding up of the
Company, whether voluntary or involuntary, after there shall have been paid or
set aside for payment to the holders of any issued shares ranking senior to the
Ordinary Shares as to distribution on liquidation or distribution on winding up,
the full amounts to which they shall be entitled and the holders of the
then-issued Ordinary Shares shall be entitled to receive, pro rata according to
the number of Ordinary Shares registered in the names of such Members, any
remaining assets of the Company available for distribution to its Members. The
liquidator may with the sanction of a Special Resolution distribute, in kind, to
the holders of the Ordinary Shares remaining assets of the Company or may,
without the need of any such sanction sell, transfer or otherwise dispose of all
or any part of such remaining assets to any other person, corporation, trust or
entity and receive payment therefor in cash, shares or obligations of such other
person, corporation, trust or entity or any combination thereof, and may sell
all or any part of the consideration so received, and may distribute the
consideration received or any balance or proceeds thereof to holders of the
Ordinary 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 Member shall be compelled to accept any shares or other securities
whereon there is any liability.
XXXIV. DEREGISTRATION
34.1 (a) 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; and
(b) In furtherance of a resolution adopted pursuant to (a) above of this
Article 34.1, the 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 they consider appropriate to be
taken to effect the transfer by way of continuation of the Company.
XXXV. FISCAL YEAR
35.1 Each Fiscal Year shall commence on such date as may be specified by
the Board of Directors.
XXXVI. AMENDMENTS OF ARTICLES
36.1 Subject to the Statute and as provided in these Articles, the Company
may at any time and from time to time by Special Resolution alter or amend these
Articles in whole or in part.
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