| Ireland | 98-0664891 | |||
|
(State or other jurisdiction
of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
|
Arthur Cox Building
Earlsfort Terrace Dublin 2 Ireland |
None |
|
| (Address of principal executive offices) | (Zip Code) |
| o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01.
Entry into a Material Definitive Agreement.
Assumption and Amendment of Share Incentive Plan
On July 2, 2010 Global Indemnity plc (“GI plc”) entered into a deed poll pursuant to which GI plc
assumed UAI Ltd.’s existing obligations in connection with awards granted under the UAI Ltd. Share
Incentive Plan and other similar employee awards and UAI Ltd.’s existing shareholder agreement (the
“Plan”). Based on the Transaction (as such term is defined in Item 8.01) and the one-for-two
exchange, proportionate adjustments will be made to the per share exercise price and/or the number
of shares issuable upon the exercise or conversion of all outstanding options to reflect the
exchange ratio pursuant to the terms of such instruments.
A copy of the Plan (or amendments thereto), which have been amended to reflect the Transaction, and
the deed poll of assumption, is filed herewith as Exhibits 10.1 through 10.3 and incorporated into
this Item 1.01 by reference, and the foregoing summary of the amended Plan is qualified in its
entirety by reference to such Exhibits to this Current Report on Form 8-K.
Assumption
and Amendment of Annual Incentive Awards Program
On July 2, 2010 GI plc entered into a deed poll pursuant to which GI plc assumed UAI Ltd.’s
existing obligations in connection with share-based awards granted under the UAI Ltd. Annual
Incentive Awards Program (the “Program”).
A copy of the Program (or amendments thereto), which has been amended to reflect the Transaction,
and the deed poll of assumption are filed herewith as Exhibits 10.4 and 10.5 and incorporated into
this Item 1.01 by reference, and the foregoing summary of the amended Program is qualified in its
entirety by reference to such Exhibits to this Current Report on Form 8-K.
Amendment of Shareholders’ Agreement
On July 2, 2010, GI plc entered into an amended and restated shareholders agreement and an
assumption agreement with certain affiliates of Fox Paine pursuant to which it assumed the
obligations of UAI Ltd. under the existing shareholders agreement between UAI Ltd. and such
affiliates of Fox Paine. Copies of the amended and restated shareholders agreement and the
assumption agreement are filed herewith as Exhibits 10.6 and 10.7 and incorporated into this Item
1.01 by reference.
Tax Indemnification Agreement
On July 2, 2010, UAI Ltd. entered into an agreement to indemnify the affected indirect owners of
the affiliates of Fox Paine that were shareholders of UAI Ltd. immediately prior to the effective
time of the Transaction for any tax cost to them (including interest on tax and penalties, if any)
of any triggering event and such affected indirect owners will pay us an amount equal to any tax
benefits, if any, realized by them as a result of a triggering event for which they were
indemnified, provided that the indirect owners will not be required to pay any amount of tax
benefits in excess of the tax costs for which we have indemnified them. A sale or other
disposition by these indirect owners of our ordinary shares will not constitute a triggering event
for this purpose. In addition, the indemnification agreement with such affiliates of Fox Paine
provides that, under certain circumstances, in the event the conversion of GI plc’s Class B
ordinary shares to Class A ordinary shares or a sale or other disposition of GI plc’s Class B
ordinary shares by any of such affiliates of Fox Paine is subject to Irish stamp duty, we will
indemnify such affiliates of Fox Paine and their transferees against such Irish stamp duty. A copy
of the indemnification agreement is filed herewith as Exhibit 10.8 and incorporated into this Item
1.01 by reference.
Item 3.02
Unregistered Sales of Equity Securities.
On July 2, 2010, pursuant to the Transaction, each holder of UAI Ltd. Class A and Class B common
shares immediately before the Transaction received GI plc Class A and Class B ordinary shares on a
one-for-two basis in exchange for their UAI Ltd. Class A and Class B common shares, respectively;
provided that, holders of UAI Ltd. common shares who would otherwise have received fractional
shares in GI plc as a result of the one-for-two exchange received cash in consideration of the
fractional shares which would otherwise have been issued.
On July 2, 2010, GI plc issued approximately 18,254,084 Class A ordinary shares and 12,061,368
Class B ordinary shares to the holders of UAI Ltd. Class A common shares and Class B common shares,
respectively, holding the UAI Ltd. common shares immediately prior to the effective time of the
Transaction. The terms and conditions of the issuance and exchange of the securities were approved
by the Grand Court of the Cayman Islands, after a hearing upon the fairness of such terms and
conditions at which all UAI Ltd. shareholders had a right to appear and of which adequate notice
had been given. The issuance was exempt from the registration requirements of the Securities Act of
1933, as amended (the “Securities Act”), by virtue of Section 3(a)(10) of the Securities Act.
The description of the Transaction under Item 8.01 is incorporated herein by reference.
Item 3.03
Material Modification to Rights of Security Holders.
The information included under Item 5.03 and 8.01 is incorporated herein by reference.
Item 5.01
Changes in Control of Registrant.
The description of the Transaction under Item 8.01 is incorporated herein by reference.
Item 5.02
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
As of July 2, 2010, following the completion of the Transaction, the directors and executive
officers of UAI Ltd. immediately prior to the Transaction became the directors and executive
officers of GI plc.
In connection with the completion of the Transaction, UAI Ltd. has entered into indemnification
agreements with each of the directors of GI plc that provide for indemnification and expense
advancement and include related provisions intended to facilitate the indemnitee’s receipt of such
benefits. A form of the indemnification agreement is filed as Exhibit 10.9 to this Current Report
on Form 8-K and is incorporated herein by reference.
Item 5.03
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On July 2, 2010, the Class A and Class B common shareholders of UAI Ltd. became, respectively,
Class A and Class B ordinary shareholders of GI plc and GI plc became the parent company of UAI
Ltd. As a result, on July 2, 2010, the memorandum and articles of association of GI plc as in
effect at that time became the documents governing the parent company of the UAI Ltd. and the
rights of the shareholders of GI plc. The description of GI plc’s memorandum and articles of
association under Item 8.01 is incorporated herein by reference. The complete text of the
memorandum and articles of association of GI plc are filed as Exhibit 3.1 to this Current Report on
Form 8-K and are incorporated herein by reference. The summary of GI plc’s memorandum and articles
of association is qualified in its entirety by reference to Exhibit 3.1.
Item 8.01
Other Events.
On July 2, 2010, the scheme of arrangement under Cayman Islands law (the “Scheme of Arrangement”)
to effect the transaction (the “Transaction”) pursuant to which GI plc became the parent company of
UAI Ltd. became effective. The Transaction involved several steps. On March 9, 2010, UAI Ltd.
formed GI plc as a direct subsidiary. On April 20, 2010, UAI Ltd. petitioned the Grand Court of the
Cayman Islands to order the calling of a meeting of UAI Ltd.’s shareholders to approve the Scheme
of Arrangement. UAI Ltd. held the special court-ordered meeting to approve the Scheme of
Arrangement on May 27, 2010 and received the requisite shareholder approvals and on June 11, 2010,
the Grand Court of the Cayman Islands approved the Scheme of Arrangement.
At the effective time of the Transaction, the following steps effectively occurred simultaneously:
1. All previously outstanding Class A common shares of UAI Ltd. were repurchased and cancelled;
2. GI plc issued Class A ordinary shares on a one-for-two basis to the holders of UAI Ltd.
Class A common shares that were repurchased and cancelled;
3. holders of UAI Ltd. Class A common shares who would otherwise have received fractional
shares in GI plc as a result of the one-for-two exchange received cash in consideration of the fractional
shares that would otherwise have been issued in an amount based on the average of the high and low trading
prices of UAI Ltd. Class A common shares on NASDAQ on the business day immediately preceding the effective
date of the Scheme of Arrangement;
4. all previously outstanding UAI Ltd. Class B common shares were repurchased and cancelled;
5. GI plc issued Class B ordinary shares on a one-for-two basis to the holders of UAI Ltd.
Class B common shares that were repurchased and cancelled;
6. holders of UAI Ltd. Class B common shares who would otherwise have received fractional
shares in GI plc as a result of the one-for-two exchange received cash in consideration of the fractional
shares that would otherwise have been issued in an amount based on the average of the high and low trading
prices of UAI Ltd. Class A common shares (into which UAI Ltd. Class B common shares were, save in limited
circumstances, convertible upon sale) on NASDAQ on the business day immediately preceding the
effective date of the Scheme of Arrangement;
7. UAI Ltd. issued 100 UAI Ltd. Class A common shares to GI plc (which will constitute all of
UAI Ltd.’s issued shares at such time);
8. all previously outstanding ordinary shares of GI plc, which prior to the effective time of
the Transaction were held by UAI Ltd. and its nominees, were reclassified as deferred shares and ceased to carry
any right to a dividend or to receive notice of or to attend, vote or speak at any shareholder
meeting and only confer the right on a return of capital to repayment of the nominal value paid on those
shares and only after repayment of the Class A and Class B ordinary shares in full and may be acquired by
GI plc for no consideration; and
9. UAI Ltd. filed an election to be treated as an entity disregarded from GI plc for U.S.
federal income tax purposes. This election was effective two days after the effective time of the
Transaction.
GI plc Class A and Class B ordinary shares issued pursuant to the Transaction are fully paid and
non-assessable.
As a result of the Transaction, Class A and Class B common shareholders of UAI Ltd. became Class A
and Class B ordinary shareholders of GI plc, respectively, and UAI Ltd. has become a wholly owned
subsidiary of GI plc.
On July 2, 2010, GI plc issued a press release announcing the completion of the Transaction. The
press release is attached as Exhibit 99.1.
Prior to the Transaction, the UAI Ltd. Class A common shares were registered pursuant to Section
12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and listed on the
NASDAQ Global Select Market under the symbol “INDM.” In connection with the Transaction, UAI Ltd.
requested that NASDAQ file with the Securities and Exchange Commission (“Commission”) a Form 25 to
remove the UAI Ltd. Class A common shares from listing on NASDAQ. UAI Ltd. has filed a Form 15 with
the Commission to terminate the registration of the UAI Ltd. Class A common shares and suspend its
reporting obligations under Sections 13 and 15(d) of the Exchange Act.
Pursuant to Rule 12g-3(a) promulgated under the Exchange Act, the GI plc Class A ordinary shares
are deemed registered under Section 12(b) of the Exchange Act. The GI plc Class A ordinary shares
were approved for listing on NASDAQ and will begin trading under the symbol “GBLI”. The CUSIP
number of the Class A ordinary shares of GI plc is G39319 101.
Set forth below is a description of the share capital of GI plc.
DESCRIPTION OF GI PLC SHARE CAPITAL
The following description of GI plc’s share capital is a summary. This summary is not complete and
is subject to the complete text of GI plc’s memorandum and articles of association attached as
Exhibit 3.1 and to the Irish Companies Acts 1963-2009 (the “Irish Companies Acts”). We encourage
you to read those laws and documents carefully.
Capital Structure
Authorized Share Capital.
The authorized share capital of GI plc is
€
40,000 and US$100,000 divided
into 40,000 ordinary shares (which have become 40,000 deferred shares on the consummation of the
Transaction) with a nominal value of
€
1 per share, 600,000,000 Class A ordinary shares with a
nominal value of US$0.0001 per share, 300,000,000 Class B ordinary shares with a nominal value of
US$0.0001 per share and 100,000,000 preferred shares with a nominal value of US$0.0001 per share.
GI plc may issue shares subject to the maximum prescribed by its authorized share capital contained
in its articles of association.
In connection with the Transaction, GI plc has also assumed UAI Ltd.’s existing obligations to
deliver shares under our Share Incentive Plan pursuant to the terms thereof and pursuant to the
terms of the applicable share award agreements. Based on the Transaction and the one-for-two
exchange, proportionate adjustments have been made to the per share exercise price and/or the
number of shares issuable upon the exercise or conversion of all outstanding options to reflect the
exchange ratio pursuant to the terms of such instruments.
As a matter of Irish company law, the directors of a company may issue new ordinary or preferred
shares without shareholder approval once authorized to do so by the articles of association of the
company or by an ordinary resolution adopted by the shareholders at a general meeting. An “ordinary
resolution” requires a majority of the total number of votes of the shares of GI plc present in
person or by proxy and entitled to vote at the meeting convened to consider the matter. The
authority conferred can be granted for a maximum period of five years, at which point it must be
renewed by the shareholders of the company by an ordinary resolution.
The articles of association of GI plc authorize the board of directors of GI plc to issue new
ordinary or preferred shares without shareholder approval for a period of five years from the date
of GI plc’s incorporation.
The authorized share capital may be increased or reduced as provided for in GI plc’s articles. The
shares
comprising the authorized share capital of GI plc may be divided into shares of such par value as
the articles prescribes.
The rights and restrictions to which the ordinary shares are subject are prescribed in GI plc’s
articles of association. GI plc’s articles of association entitle the board of directors, without
shareholder approval, to determine the terms of the preferred shares issued by GI plc. The GI plc
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 that class or series or shares, to
provide from time to time for the issuance of other series of preferred shares and to establish the
characteristics of each series, including the number of shares, designations, relative voting
rights, dividend rights, liquidation and other rights, redemption, repurchase or exchange rights
and any other preferences and relative, participating, optional or other rights and limitations not
inconsistent with applicable law.
Irish law does not recognize fractional shares held of record; accordingly, the official Irish
register of shareholders of GI plc does not reflect any fractional shares. Whenever as a result of
an alteration or reorganization of the share capital of GI plc any shareholder would become
entitled to fractions of a share the directors may, on behalf of these shareholders sell the shares
representing the fractions for the best price reasonably obtainable to any person and distribute
the proceeds of the sale in due proportion among those shareholders (after deduction of brokerage
commissions or other sale expenses). This ability of the directors of GI plc to dispose of
fractional shares is required in order to comply with the Irish law prohibition on fractional
shares held of record.
Issued Share Capital.
Immediately prior to the Transaction, the issued share capital of GI plc was
€
40,000, comprised of 40,000 ordinary shares, with par value of
€
1 per share (the “Euro Share
Capital”). In connection with the consummation of the Transaction, the Euro Share Capital was
reclassified as deferred shares and has ceased to carry any right to a dividend or to receive
notice of or to attend, vote or speak at any shareholder meeting and shall only confer the right on
a return of capital, on a winding-up or otherwise, to repayment of the nominal value paid on those
shares and only after repayment of the Class A and Class B ordinary shares in full and may be
acquired by GI plc for no consideration. GI plc has simultaneously issued a number of Class A and
Class B ordinary shares with a par value of $0.0001 each that takes into account the one-for-two
exchange of Class A and Class B ordinary shares for the UAI Ltd. Class A and Class B common shares
that have been cancelled as part of the Transaction (including shares of GI plc issued to UAI Ltd.
in respect of any shares of UAI Ltd. held as treasury shares immediately prior to the effective
time of the Transaction). All shares issued on completion of the Transaction have been issued as
fully paid up.
Pre-emption Rights, Share Warrants and Share Options
Certain statutory pre-emption rights apply automatically in favor of GI plc’s shareholders where
shares in GI plc have been issued for cash. However, GI plc has opted out of these pre-emption
rights in its articles of association as permitted under Irish company law. This opt-out must be
renewed every five years by a special resolution of the shareholders. A special resolution requires
not less than 75% of the votes of the shares of GI plc present in person or by proxy and entitled
to vote at the meeting convened to consider the matter. If the opt-out is not renewed, shares
issued for cash must be offered to pre-existing shareholders of GI plc pro rata to their existing
shareholding before the shares can be issued to any new shareholders. The statutory preemption
rights do not apply where shares are issued for non-cash consideration and do not apply to the
issue of non-equity shares (that is, shares that have the right to participate only up to a
specified amount in any income or capital distribution).
The articles of association of GI plc provide that, subject to any shareholder approval requirement
under any laws, regulations or the rules of any stock exchange to which GI plc is subject, the
board of directors is authorized, from time to time, in its discretion, to grant such persons, for
such periods and upon such terms as the board of directors deems advisable, options to purchase
such number of shares of any class or classes or of any series of any class as the board of
directors may deem advisable, and to cause warrants or other appropriate instruments evidencing
such options to be issued. The Irish Companies Acts provide that directors may issue share warrants
or options without shareholder approval once authorized to do so by the articles of association or
an ordinary resolution of shareholders. The board of directors may issue shares upon exercise of
warrants or options without shareholder approval or authorization.
Dividends
Under Irish law, dividends and distributions may only be made from distributable reserves.
Distributable reserves, broadly, means the accumulated realized profits of GI plc less accumulated
realized losses of GI plc. In addition, as a public limited company, no distribution or dividend
may be made unless the net assets of GI plc are equal to, or in excess of, the aggregate of GI
plc’s called up share capital plus undistributable reserves and the distribution does not reduce GI
plc’s net assets below such aggregate amount. Undistributable reserves include the share premium
account, the capital redemption reserve fund and the amount by which GI plc’s accumulated
unrealized profits, so far as not previously utilized by any capitalization, exceed GI plc’s
accumulated unrealized losses, so far as not previously written off in a reduction or
reorganization of capital.
The determination as to whether or not GI plc has sufficient distributable reserves to fund a
dividend must be made by reference to “relevant accounts” of GI plc. The “relevant accounts” will
be the last set of unconsolidated annual audited financial statements (except for any initial set
of unconsolidated audited financial statements produced prior to the end of a company’s first
fiscal year and which are not therefore annual audited financial statements) prepared in accordance
with the Irish Companies Acts and any unaudited financial statements as are necessary to enable a
reasonable judgment to be made as to the level of distributable reserves and which give a “true and
fair view” of GI plc’s unconsolidated financial position and accord with accepted accounting
practice. The relevant accounts must be filed in the Companies Registration Office (the official
public registry for companies in Ireland).
Although GI plc does not have any distributable reserves immediately following the effective time
of the Transaction, we are taking steps to create such distributable reserves.
The mechanism as to who declares a dividend and when a dividend shall become payable is governed by
the articles of association of GI plc. GI plc’s articles of association authorize the directors to
declare such dividends as appear justified from the profits of GI plc without the approval of the
shareholders at a general meeting. The board of directors may also recommend a dividend to be
approved and declared by the shareholders at a general meeting. Although a payment of dividends may
be made by distribution of assets, shares or cash, no dividend issued may exceed the amount
recommended by the directors. The dividends can be declared and paid in the form of cash or
non-cash assets.
The directors of GI plc may deduct from any dividend payable to any member all sums of money (if
any) immediately payable by such member to GI plc in relation to shares of GI plc.
Share Repurchases, Redemptions and Conversions
Overview
Article 3(h) of GI plc’s articles of association provides that any ordinary share which GI plc has
acquired or agreed to acquire shall be deemed to be a redeemable share. Accordingly, for Irish
company law purposes, the repurchase of ordinary shares by GI plc was technically effected as a
redemption of those shares as described below. If the articles of association of GI plc did not
contain Article 3(h), repurchases by GI plc would be subject to many of the same rules that apply
to purchases of GI plc ordinary shares by subsidiaries described below, including the shareholder
approval requirements described below and the requirement that any on-market purchases be effected
on a “recognized stock exchange.” Except where otherwise noted, when we refer elsewhere herein to
repurchasing or buying back ordinary shares of GI plc, we are referring to the redemption of
ordinary shares by GI plc pursuant to Article 3(h) of the articles of association or the purchase
of ordinary shares of GI plc by a subsidiary of GI plc, in each case in accordance with the GI plc
articles of association and Irish company law as described below.
Repurchases and Redemptions by GI plc
Under Irish law, a company can issue redeemable shares and redeem them out of distributable
reserves or the proceeds of a new issue of shares for that purpose. Although GI plc does not have
any distributable reserves immediately following the effective time of the Transaction, we are
taking steps to create such distributable reserves. The issue of redeemable shares may only be made
by GI plc where the nominal value of the issued share capital that is not redeemable is not less
than 10% of the nominal value of the total issued share capital of GI plc. All redeemable shares
must also be fully paid and the terms of redemption of the shares must provide for payment on
redemption. Redeemable shares may, upon redemption, be cancelled or held in treasury. Shareholder
approval will not be required to redeem GI plc shares.
The board of directors of GI plc is entitled to issue shares which may be redeemed at the option of
either GI plc or the shareholder, depending on the terms of such preferred shares.
Repurchased and redeemed shares may be cancelled or held as treasury shares. The nominal value of
treasury shares held by GI plc at any time must not exceed 10% of the nominal value of the issued
share capital of GI plc. While GI plc holds shares as treasury shares, it cannot exercise any
voting rights in respect of those shares. Treasury shares may be cancelled by GI plc or re-issued
subject to certain conditions.
Purchases by Subsidiaries of GI plc
Under Irish law, it may be permissible for an Irish or non-Irish subsidiary to purchase shares of
GI plc either on-market or off-market. A general authority of the shareholders of GI plc is
required to allow a subsidiary of GI plc to make on-market purchases of GI plc ordinary shares;
however, as long as this general authority has been granted, no specific shareholder authority for
a particular on-market purchase by a subsidiary of GI plc ordinary shares is required. The
authority has already been granted by GI plc’s shareholders, such authority to expire no later than
18 months after the date on which granted. We expect that GI plc will renew such general authority
at the first annual general meeting of GI plc in 2010 and at subsequent annual general meetings. In
order for a subsidiary of GI plc to make an on-market purchase of GI plc’s shares, such shares must
be purchased on a “recognized stock exchange.” NASDAQ, on which the shares of GI plc are listed
following the Transaction, is now recognized as a recognized stock exchange for this purpose by
Irish company law. For an off-market purchase by a subsidiary of GI plc, the proposed purchase
contract must be authorized by special resolution of the shareholders of GI plc before the contract
is entered into. The person whose shares are to be bought back cannot vote in favor of the special
resolution and, for at least 21 days prior to the special resolution, the purchase contract must be
on display or must be available for inspection by shareholders at the registered office of GI plc.
The number of shares held by the subsidiaries of GI plc at any time will count as treasury shares
and will be included in any calculation of the permitted treasury share threshold of 10% of the
nominal value of the issued share capital of GI plc. While a subsidiary holds shares of GI plc, it
cannot exercise any voting rights in respect of those shares. The acquisition of the shares of GI
plc by a subsidiary must be funded out of distributable reserves of the subsidiary.
Consolidation and Division; Subdivision
Under its articles of association, GI plc may by ordinary resolution consolidate and divide all or
any of its share capital into shares of larger par value than its existing shares or subdivide its
shares into smaller amounts than is fixed by its memorandum of association.
Reduction of Share Capital
GI plc may, by ordinary resolution, 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 and reduce the amount of its
authorized share capital by the amount of shares so cancelled. GI plc also may by special
resolution reduce its issued share capital, any capital redemption reserve fund or any share
premium account in any manner and subject to any incident authorized and consent required, by law,
including that of the Irish High Court. The distributable reserves proposal which GI plc will
shortly be undertaking involves a reduction of share capital, namely the share premium account of
GI plc, for purposes of Irish law.
General Meetings of Shareholders
GI plc will be required to hold an annual general meeting within eighteen months of incorporation
and at intervals of no more than fifteen months thereafter, provided that an annual general meeting
is held in each calendar year following the first annual general meeting, no more than nine months
after GI plc’s fiscal yearend. The first annual general meeting of GI plc may be held outside of
Ireland. Thereafter, any annual general meeting may be held outside of Ireland if a resolution so
authorizing has been passed at the preceding annual general meeting. Subject to applicable law, all
general meetings of GI plc may be held outside Ireland.
Extraordinary general meetings of GI plc may be convened by the board of directors, or on
requisition of the shareholders holding not less than 10% of the paid up share capital of GI plc
carrying voting rights. In limited circumstances, GI plc’s auditors can require the board of
directors to convene extraordinary general meetings of GI plc. Extraordinary general meetings are
generally held for the purposes of approving shareholder resolutions of GI plc as may be required
from time to time. Unless the consent of all the shareholders entitled to receive notice of that
meeting is obtained at any extraordinary general meeting, only such business shall be conducted as
is set forth in the notice thereof.
Notice of a general meeting must be given to all shareholders of GI plc (with the exception of the
holder of the Euro Share Capital) and to the auditors of GI plc. The minimum notice periods are 21
days’ notice in writing for an annual general meeting or an extraordinary general meeting to
approve a special resolution and 14 days’ notice in writing for any other extraordinary general
meeting. Because of the 21-day and 14-day requirements described in this paragraph, GI plc’s
articles of association include provisions reflecting these requirements of Irish law.
In the case of an extraordinary general meeting convened by shareholders of GI plc, the proposed
purpose of the meeting must be set out in the requisition notice. The requisition notice can
contain any resolution. Upon receipt of this requisition notice, the board of directors has 21 days
to convene a meeting of GI plc’s shareholders to vote on the matters set out in the requisition
notice. This meeting must be held within two months of the receipt of the requisition notice. If
the board of directors does not convene the meeting within such 21-day period, the requisitioning
shareholders, or any of them representing more than one half of the total voting rights of all of
them, may themselves convene a meeting, which meeting must be held within three months of the
receipt of the requisition notice.
The only matters which must, as a matter of Irish company law, be transacted at an annual general
meeting are the presentation of the annual accounts, balance sheet and reports of the directors and
auditors, the appointment of auditors and the fixing of the auditor’s remuneration (or delegation
of same). If no resolution is made in respect of the reappointment of an auditor at an annual
general meeting, the previous auditor will be deemed to have continued in office.
Directors are elected by the affirmative vote of a majority of the votes cast by shareholders at an
annual general meeting and serve for one year terms. Any nominee for director who does not receive
a majority of the votes cast is not elected to the board of directors. However, because Irish law
requires a minimum of two directors at all times, in the event that an election results in no
director being elected, each of the two nominees receiving the greatest number of votes in favor of
his or her election shall hold office until such time as additional directors have been appointed
to replace them. In the event that an election results in only one director being elected, that
director shall be elected and shall serve for a one year term, and the nominee receiving the next
greatest number of votes in favor of their election shall hold office until one or more additional
directors have been appointed to replace that director.
Pursuant to Irish law, if the directors become aware that the net assets of GI plc are half or less
of the amount of GI plc’s called-up share capital, the directors of GI plc must convene an
extraordinary general meeting of GI plc’s shareholders not later than 28 days from the date that
they learn of this fact. This meeting must be convened for the purposes of considering whether any,
and if so what, measures should be taken to address the situation.
Voting
All votes at a meeting shall be determined by a poll and every shareholder shall have one vote for
each Class A ordinary share and ten votes for each Class B ordinary share that he or she holds as
of the record date for the meeting (unless statute provides otherwise such as is the case in a
scheme of arrangement). Voting rights on a poll may be exercised by shareholders registered in GI
plc’s share register as of the record date for the meeting or by a duly appointed proxy of such a
registered shareholder, which proxy need not be a shareholder. Where interests in shares are held
by a nominee trust company this company may exercise the rights of the beneficial holders on their
behalf as their proxy. All proxies must be appointed in the manner prescribed by GI plc’s articles
of association. The articles of association of GI plc permit the appointment of proxies by the
shareholders to be notified to GI plc electronically.
In accordance with the articles of association of GI plc, the directors of GI plc may from time to
time cause GI plc to issue preferred shares. These preferred shares may have such voting rights as
may be specified in the terms of such preferred shares (e.g., they may carry more votes per share
than ordinary shares or may entitle their holders to a class vote on such matters as may be
specified in the terms of the preferred shares).
Treasury shares are not entitled to vote at general meeting of shareholders.
The Euro Share Capital carries no right to receive notice of or to attend, vote or speak at any
shareholder meeting.
Irish company law requires “special resolutions” of the shareholders at a general meeting to
approve certain matters. A special resolution requires not less than 75% of the votes of the shares
of GI plc present in person or by proxy and entitled to vote at the meeting convened to consider
the matter. This may be contrasted with “ordinary resolutions,” which require a simple majority of
the votes of GI plc’s shareholders cast at a general meeting. Examples of matters requiring special
resolutions include:
•
Amending the objects or memorandum of association of GI plc;
•
Amending the articles of association of GI plc;
•
Approving a change of name of GI plc;
•
Authorizing the entering into of a guarantee or provision of security in connection with a
loan, quasiloan or credit transaction to a director or connected person;
•
Opting out of pre-emption rights on the issuance of new shares;
•
Re-registration of GI plc from a public limited company as a private company;
•
Variation of class rights attaching to classes of shares;
•
Purchase of own shares off-market;
•
The reduction of share capital;
•
Resolving that GI plc be wound up by the Irish courts;
•
Resolving in favor of a shareholders’ voluntary winding-up;
•
Re-designation of shares into different share classes; and
•
Setting the re-issue price of treasury shares.
A scheme of arrangement with shareholders requires a court order from the Irish High Court and the
approval of: (1) 75% or more in value of the shares of GI plc present and voting in person or by
proxy; and (2) 50% in number of the voting shareholders, at the meeting convened to consider the
scheme.
Variation of Rights Attaching to a Class or Series of Shares
Variation of all or any special rights attached to any class or series of shares of GI plc is
addressed in the articles of association of GI plc as well as the Irish Companies Acts. Any
variation of class rights attaching to the issued shares of GI plc must be approved in writing by
holders of 75% of the issued shares as that class or with the sanction of a special resolution of
the shareholders of the class or series affected.
Quorum for General Meeting
The presence, in person or by proxy, of one or more holders holding at least a majority of the
votes eligible to be cast at a general meeting constitutes a quorum for the conduct of business. No
business may take place at a general meeting of GI plc if a quorum is not present in person or by
proxy. The board of directors has no authority to waive quorum requirements stipulated in the
articles of association of GI plc. Abstentions and broker non-votes will be counted as present for
purposes of determining whether there is a quorum in respect of the proposals.
Inspection of Books and Records
Under Irish law, shareholders have the right to: (1) receive a copy of the memorandum and articles
of association of GI plc and any act of the Irish Government which alters the memorandum of
association of GI plc; (2) inspect and obtain copies of the minutes of general meeting and
resolutions of GI plc; (3) inspect and receive a copy of the register of shareholders, register of
directors and secretaries, register of directors’ interests and other statutory registers
maintained by GI plc; (4) receive copies of balance sheets and directors’ and auditors’ reports
which have previously been sent to shareholders prior to an annual general meeting; and (5) receive
balance sheets of a subsidiary company of GI plc which have previously been sent to shareholders
prior to an annual general meeting for the preceding ten years. The auditors of GI plc will also
have the right to inspect all books, records and vouchers of GI plc. If required by law, the
auditors’ report must be circulated to the shareholders with copies of the balance sheet and
auditors’ report 21 days before the annual general meeting and must be read to the shareholders at
GI plc’s annual general meeting.
Acquisitions
There are a number of mechanisms for acquiring an Irish public limited company, including:
(a) a court-approved scheme of arrangement under the Irish Companies Acts. A scheme of
arrangement with shareholders requires a court order from the Irish High Court and the
approval of: (1) 75% or more in value of the shares of GI plc present in person or by proxy
and entitled to vote; and (2) 50% in number of the voting shareholders, at the meeting
convened to consider the scheme;
(b) through a tender offer by a third party for all of the shares of GI plc. Where the
holders of 80% or more in value of GI plc’s ordinary shares have accepted an offer for their
shares in GI plc, the remaining shareholders may be statutorily required to also transfer
their shares. If the bidder does not exercise its “squeeze out” right, then the
non-accepting shareholders also have a statutory right to require the bidder to acquire
their shares on the same terms. If shares of GI plc were listed on the Irish Stock Exchange
or another regulated stock exchange in the EU, this threshold would be increased to 90%; and
(c) it is also possible for GI plc to be acquired by way of a merger with an EU-incorporated
public company under the EU Cross Border Merger Directive 2005/56. Such a merger must be
approved by a special resolution. If GI plc is being merged with another EU public company
under the EU Cross Border Merger Directive 2005/56 and the consideration payable to GI plc’s
shareholders is not all in the form of cash, GI plc’s shareholders may be entitled to
require their shares to be acquired at fair value.
Under Irish law, there is no general requirement for a company’s shareholders to approve a sale,
lease or exchange of all or substantially all of a company’s assets to a third party.
Appraisal Rights
Generally, under Irish law, shareholders of an Irish company do not have appraisal rights. Under
the EC (Cross-Border Mergers) Regulations 2008 governing the merger of an Irish public limited
company and a company incorporated in the European Economic Area, a shareholder (a) who voted
against the special resolution approving the merger or (b) of a company in which 90% of the shares
is held by the other company the party to the merger of the transferor company has the right to
request that the company acquire its shares for cash.
Disclosure of Interests in Shares
Under the Irish Companies Acts, there is a notification requirement for shareholders who acquire or
cease to be interested in at least 5% of the shares of an Irish public limited company. A
shareholder of GI plc must therefore make such a notification to GI plc if as a result of a
transaction the shareholder will be interested in 5% or more of the shares of GI plc; or if as a
result of a transaction a shareholder who was interested in more than 5% will cease to be
interested in at least 5% of the shares of GI plc. Where a shareholder is interested in more than
5% of the shares of GI plc, any alteration of his or her interest that brings his or her total
holding to the nearest whole percentage number, whether an increase or a reduction, must be
notified to GI plc. The relevant percentage figure is calculated by reference to the aggregate par
value of the shares in which the shareholder is interested as a proportion of the entire par value
of GI plc’s share capital. Where the percentage level of the shareholder’s interest does not amount
to a whole percentage this figure may be rounded down to the next whole number. All such
disclosures should be notified to GI plc within 5 business days of the transaction or alteration of
the shareholder’s interests that gave rise to the requirement to notify. Where a person fails to
comply with the notification requirements described above, no right or interest of any kind
whatsoever in respect of any shares in GI plc concerned, held by such person, shall be enforceable
by such person, whether directly or indirectly, by action or legal proceeding. However, such person
may apply to the court to have the rights attaching to the shares concerned reinstated.
GI plc’s articles of association also give authority to the board of directors to request from any
direct or indirect holder of shares, such information as is required to determine whether that
shareholder may be a U.S. person and controls 9.5% or more of the voting power of GI plc. GI plc
has the power under it articles to adjust the voting power of all shares to the extent necessary so
that there is no 9.5% U.S. shareholder, to avoid potential consequences for the U.S. shareholder
under the United States Internal Revenue Code of 1986, except that, such adjustment shall not apply
to Fox Paine and its affiliates or any group, as that term is used in Section 13(d) of the Exchange
Act, referred to as a “13D Group,” in which Fox Paine or an affiliate is a participant, and shall
not apply to any shareholder in the event that one person or 13D Group beneficially owns greater
than 75% of the voting power or value of the issued shares of GI plc.
Further, under GI plc’s articles of association any direct or indirect holder of shares that has
actual knowledge that it is the actual or constructive owner of 9.5% or more of the voting power of
all issued and outstanding shares of GI plc shall give notice to GI plc within ten days of
acquiring that knowledge.
In addition to the above disclosure requirement, GI plc, under the Irish Companies Acts, may by
notice in writing require a person whom GI plc knows or has reasonable cause to believe to be, or
at any time during the three years immediately preceding the date on which such notice is issued,
to have been interested in shares comprised in GI plc’s relevant share capital to: (a) indicate
whether or not it is the case, and (b) where such person holds or has during that time held an
interest in the shares of GI plc, to give such further information as may be required by GI plc
including particulars of such person’s own past or present interests in shares of GI plc. Any
information given in response to the notice is required to be given in writing within such
reasonable time as may be specified in the notice.
Where such a notice is served by GI plc on a person who is or was interested in shares of GI plc
and that person fails to give GI plc any information required within the reasonable time specified,
GI plc may apply to court for an order directing that the affected shares be subject to certain
restrictions. Under the Irish Companies Acts, the restrictions that may be placed on the shares by
the court are as follows:
(a) any transfer of those shares, or in the case of unissued shares any transfer of the
right to be issued with shares and any issue of shares, shall be void;
(b) no voting rights shall be exercisable in respect of those shares;
(c) no further shares shall be issued in right of those shares or in pursuance of any offer
made to the holder of those shares; and
(d) no payment shall be made of any sums due from GI plc on those shares, whether in respect
of capital or otherwise.
Where the shares in GI plc are subject to these restrictions, the court may order the shares to be
sold and may also direct that the shares shall cease to be subject to these restrictions.
Anti-Takeover Provisions
Irish Takeover Rules and Substantial Acquisition Rules
A transaction by virtue of which a third party is seeking to acquire 30% or more of the voting
rights of GI plc will be governed by the Irish Takeover Panel Act 1997 and the Irish Takeover Rules
made thereunder and will be regulated by the Irish Takeover Panel. The “General Principles” of the
Irish Takeover Rules and certain important aspects of the Irish Takeover Rules are described below.
General Principles
The Irish Takeover Rules are built on the following General Principles which will apply to any
transaction regulated by the Irish Takeover Panel:
•
in the event of an offer, all classes of shareholders of the target company should be
afforded equivalent
treatment and, if a person acquires control of a company, the other holders of securities must
be protected;
•
the holders of securities in the target company must have sufficient time to allow them to
make an informed decision regarding the offer;
•
the board of a company must act in the interests of the company as a whole. If the board
of the target company advises the holders of securities as regards the offer it must advise
on the effects of the implementation of the offer on employment, employment conditions and
the locations of the target company’s place of business;
•
false markets in the securities of the target company or any other company concerned by
the offer must not be created;
•
a bidder can only announce an offer after ensuring that he or she can fulfill in full the
consideration offered;
•
a target company may not be hindered longer than is reasonable by an offer for its
securities. This is a recognition that an offer will disrupt the day-to-day running of a
target company particularly if the offer is hostile and the board of the target company must
divert its attention to resist the offer; and
•
a “substantial acquisition” of securities (whether such acquisition is to be effected by
one transaction or a series of transactions) will only be allowed to take place at an
acceptable speed and shall be subject to adequate and timely disclosure.
Mandatory Bid
If an acquisition of shares were to increase the aggregate holding of an acquirer and its concert
parties to shares carrying 30% or more of the voting rights in GI plc, the acquirer and, depending
on the circumstances, its concert parties would be required (except with the consent of the Irish
Takeover Panel) to make a cash offer for the outstanding shares at a price not less than the
highest price paid for the shares by the acquirer or its concert parties during the previous 12
months. This requirement would also be triggered by an acquisition of shares by a person holding
(together with its concert parties) shares carrying between 30% and 50% of the voting rights in GI
plc if the effect of such acquisition were to increase the percentage of the voting rights held by
that person (together with its concert parties) by 0.05% within a twelve-month period. A single
holder (that is, a holder excluding any parties acting in concert with the holder) holding more
than 50% of the voting rights of a company is not subject to this rule. Fox Paine and its
affiliates will be considered by GI plc as a single holder with regard to their holdings in GI plc
for these purposes.
Voluntary Bid; Requirements to Make a Cash Offer and Minimum Price Requirements
A voluntary offer is an offer that is not a mandatory offer. If a bidder or any of its concert
parties acquire ordinary shares of GI plc within the period of three months prior to the
commencement of the offer period, the offer price must be not less than the highest price paid for
GI plc ordinary shares by the bidder or its concert parties during that period. The Irish Takeover
Panel has the power to extend the “look back” period to 12 months if the Irish Takeover Panel,
having regard to the General Principles, believes it is appropriate to do so.
If the bidder or any of its concert parties has acquired ordinary shares of GI plc (i) during the
period of 12 months prior to the commencement of the offer period which represent more than 10% of
the total ordinary shares of GI plc or (ii) at any time after the commencement of the offer period,
the offer shall be in cash (or accompanied by a full cash alternative) and the price per GI plc
ordinary share shall be not less than the highest price paid by the bidder or its concert parties
during, in the case of (i), the period of 12 months prior to the commencement of the offer period
and, in the case of (ii), the offer period. The Irish Takeover Panel may apply this rule to a
bidder who, together with its concert parties, has acquired less than 10% of the total ordinary
shares of GI plc in the 12 month period prior to the commencement of the offer period if the Panel,
having regard to the General Principles, considers it just and proper to do so.
An offer period will generally commence from the date of the first announcement of the offer or
proposed offer.
Substantial Acquisition Rules
The Irish Takeover Rules also contain rules governing substantial acquisitions of shares which
restrict the speed at which a person may increase his or her holding of shares and rights over
shares to an aggregate of between 15% and 30% of the voting rights of GI plc. Except in certain
circumstances, an acquisition or series of acquisitions of shares or rights over shares
representing 10% or more of the voting rights of GI plc is prohibited, if such acquisition(s), when
aggregated with shares or rights already held, would result in the acquirer holding 15% or more but
less than 30% of the voting rights of GI plc and such acquisitions are made within a period of
seven days. These rules also require accelerated disclosure of acquisitions of shares or rights
over shares relating to such holdings.
Frustrating Action
Under the Irish Takeover Rules, the board of directors of GI plc is not permitted to take any
action which might frustrate an offer for the shares of GI plc once the board of directors has
received an approach which may lead to an offer or has reason to believe an offer is imminent
except as noted below. Potentially frustrating actions such as (i) the issue of shares, options or
convertible securities, (ii) material disposals, (iii) entering into contracts other than in the
ordinary course of business or (iv) any action, other than seeking alternative offers, which may
result in frustration of an offer, are prohibited during the course of an offer or at any time
during which the board of directors has reason to believe an offer is imminent. Exceptions to this
prohibition are available where:
(a) the action is approved by GI plc’s shareholders at a general meeting; or
(b) with the consent of the Irish Takeover Panel where:
(i) the Irish Takeover Panel is satisfied the action would not constitute a frustrating
action;
(ii) the holders of 50% of the voting rights state in writing that they approve the
proposed action and would vote in favor of it at a general meeting;
(iii) in accordance with a contract entered into prior to the announcement of the
offer; or
(iv) the decision to take such action was made before the announcement of the offer and
either has been at least partially implemented or is in the ordinary course of business.
Subject to certain exceptions, Fox Paine and its affiliates will be able to prevent or cause a
change of control because of their voting power with respect to GI plc ordinary shares upon completion of the
Transaction. For other provisions that could be considered to have an anti-takeover effect, please see above at “—
Pre-emption Rights, Share Warrants and Share Options” and “— Disclosure of Interests in Shares,” in addition
to “— Corporate Governance” below.
Voting of Subsidiaries’ Shares
GI plc’s articles of association provide that, if GI plc is required or entitled to vote at a
general meeting of any direct subsidiary of GI plc that is organized under the laws of a
jurisdiction outside the United States of America, the directors shall refer the subject matter of
the vote to the shareholders of GI plc at a general meeting (subject to certain exceptions) and
seek authority from the shareholders for the Company’s corporate representative or proxy to vote in
favor of the resolution proposed by the subsidiary, unless the subsidiary is or has elected to be
disregarded from its owner for United States federal income tax purposes and does not own, directly
or indirectly, any subsidiary organized under the laws of a jurisdiction outside the United States
of America that is treated as a corporation for United States federal income tax purposes (each
such non-United States subsidiary that is not disregarded, or that is disregarded but owns,
directly or indirectly, a non-United States subsidiary that is treated as a corporation for such
purposes, a “Non-U.S. Regarded Subsidiary”). The Directors shall cause GI plc’s corporate
representative or proxy to vote GI plc’s shares in the Non-U.S. Regarded Subsidiary
pro rata
to the
votes received at the general meeting of GI plc, with votes for or against the directing resolution
being taken, respectively, as an instruction for the Company’s corporate representative or proxy to
vote the appropriate proportion of its shares for and the appropriate proportion of its shares
against the resolution proposed by the Non-U S. Regarded Subsidiary, provided, however, that the
foregoing shall not apply to any subject matter regarding a U.S. indirect subsidiary of GI plc that
is required to be voted on by a Non-U.S. Regarded Subsidiary of the Company as the shareholder of
such U.S. subsidiary, and shall apply to a vote of GI plc as shareholder of a disregarded
subsidiary that directly or indirectly owns non-United States subsidiaries treated as corporations
for United States federal income tax purposes only if the subject matter of such vote pertains to
such non-United States subsidiaries treated corporations. Notwithstanding, the directors in their
sole and absolute discretion will require that the bylaws or articles of association, or similar
organizational documents, of each Non-U.S. Regarded Subsidiary, whether currently in existence or
subsequently organized, will contain provisions substantially similar to the one in GI plc’s
articles of association. GI plc will enter into agreements with each such Non-U.S. Regarded
Subsidiary, as reasonably necessary, to effectuate or implement the provision.
Corporate Governance
The articles of association of GI plc allocate authority over the management of GI plc to the board
of directors. The board of directors may then delegate management of GI plc to committees of the
board, executives or to a management team, but regardless, the directors will remain responsible,
as a matter of Irish law, for the proper management of the affairs of GI plc. It is the intention
of GI plc to replicate the existing committees that are currently in place for UAI Ltd. which
include an Audit Committee, a Compensation Committee, Executive Committee, Investment Committee,
Nominating and Governance Committee and a Section 162(m) Committee. It also is the intention of GI
plc to adopt UAI Ltd.’s current corporate governance policies which include the Code of Business
Conduct and Ethics, Corporate Communications Policy, Insider Trading Policy, and other policies
pertaining to the Audit Committee.
Legal Name; Formation; Fiscal Year; Registered Office
The legal and commercial name of the newly formed Irish company is Global Indemnity public limited
company referred to herein as GI plc. GI plc was incorporated in Ireland, as a public limited
company on March 9, 2010 with company registration number 481805. GI plc’s fiscal year ends on
December 31 and GI plc’s registered address is Arthur Cox Building, Earlsfort Terrace, Dublin 2,
Republic of Ireland.
Duration; Dissolution; Rights upon Liquidation
GI plc’s duration is unlimited. GI plc may be dissolved at any time by way of either a
shareholders’ voluntary winding up or a creditors’ voluntary winding up. In the case of a
shareholders’ voluntary winding up, the consent of not less than 75% of the votes of the
shareholders of GI plc cast at a general meeting is required. GI plc may also be dissolved by way
of court order on the application of a creditor, or by the Companies Registration Office as an
enforcement measure where GI plc has failed to file certain returns.
The rights of the shareholders to a return of GI plc’s assets on dissolution or winding up,
following the settlement of all claims of creditors, is prescribed in GI plc’s articles of
association and may be prescribed in the terms of any preferred shares issued by the directors of
GI plc from time to time. The holders of preferred shares in particular may have the right to
priority in a dissolution or winding up of GI plc. If the articles of association contain no
specific provisions in respect of a dissolution or winding up then, subject to the priorities or
any creditors, the assets will be distributed to shareholders in proportion to the paid-up par
value of the shares held. GI plc’s articles provide that the ordinary shareholders of GI plc are
entitled to participate pro rata in a winding up, but their right to do so may be subject to the
rights of any preferred shareholders to participate under the terms of any series or class of
preferred shares, as the directors will fix at the time of issuance.
Uncertificated Shares
Holders of ordinary shares of GI plc will be entitled to a certificate for their shares. The
transfer of ordinary shares in GI plc could be subject to Irish stamp duty.
Stock Exchange Listing
The GI plc Class A ordinary shares are listed on NASDAQ under the new symbol “GBLI.” We do not plan
to be listed on the Irish Stock Exchange at the present time.
No Sinking Fund
The ordinary shares have no sinking fund provisions.
No Liability for Further Calls or Assessments
All of our issued shares are duly and validly issued and fully paid.
Transfer and Registration of Shares
GI plc’s share register will be maintained by its transfer agent. Registration in this share
register will be determinative of membership in GI plc. A shareholder of GI plc who holds shares
beneficially will not be the holder of record of such shares. Instead, the depository (for example,
Cede & Co., as nominee for DTC) or other nominee will be the holder of record of such shares.
Accordingly, a transfer of shares from a person who holds such shares beneficially to a person who
also holds such shares beneficially will not be registered in GI plc’s official share register, as
the depositary or other nominee will remain the record holder of such shares.
A written instrument of transfer is required under Irish law in order to register on GI plc’s
official share register any transfer of shares from a person who holds such shares directly to any
other person, or from a person who holds such shares beneficially to a person who holds such shares
directly or from a person who holds such shares beneficially to another person who holds such
shares beneficially where the transfer involves a change in the depository or other nominee that is
the record owner of the transferred shares. An instrument of transfer also is required for a
shareholder who directly holds shares to transfer those shares into his or her own broker account
(or vice versa). Such instruments of transfer may give rise to Irish stamp duty, which must be paid
prior to registration of the transfer on GI plc’s official Irish share register.
We currently intend to pay (or cause one of our affiliates to pay) the outstanding stamp duty in
respect of a transfer of shares. GI plc’s articles of association provide that, in the event of any
such payment, GI plc (i) may seek reimbursement from the transferor or transferee (at our
discretion), (ii) may setoff the amount of the stamp duty against future dividends payable to the
transferor or transferee (at our discretion), and (iii) will have a lien against the GI plc
ordinary shares on which we have paid stamp duty.
GI plc’s articles of association delegate to GI plc’s secretary the authority to execute an
instrument of transfer on behalf of a transferring party, which the secretary may do if for any
reason such instrument is required and has not already been recorded with GI plc. In order to help
ensure that the official share register is regularly updated to reflect trading of GI plc ordinary
shares occurring through normal electronic systems, we intend to regularly produce any required
instruments of transfer in connection with any transactions for which we pay stamp duty (subject to
the reimbursement and set-off rights described above). In the event that we notify one or both of
the parties to a share transfer that we believe stamp duty is required to be paid in connection
with such transfer and that we will not pay such stamp duty, such parties may either themselves
arrange for the execution of the required instrument of transfer (and may request a form of
instrument of transfer from GI plc for this purpose) or request that GI plc execute an instrument
of transfer on behalf of the transferring party in a form determined by GI plc. In either event, if
the parties to the share transfer have the instrument of transfer duly stamped (to the extent
required) and then provide it to GI plc’s transfer agent, the transferee will be registered as the
legal owner of the relevant shares on GI plc’s official Irish share register (subject to the
matters described below).
The directors of GI plc have general discretion to decline to register an instrument of transfer
if:
(i) the transfer is not in respect of one class of share only, or
(ii) it appears to the directors, in their sole and absolute discretion, that any non-de
minimis adverse
tax, regulatory or legal consequences to GI plc or any of its subsidiaries, shareholders or
affiliates thereof would result from such transfer (including if such consequence arises as
a result of any U.S. Person owning
Controlled Shares constituting 9.5% or more of the value of the Company or the voting shares
of the
Company (subject to certain exceptions), or
(iii) such share has not been registered under the U.S. Securities Act of 1933, as amended
from time to time, or is not exempt from registration under that Act, or a written opinion
from counsel acceptable to the Company has not been obtained to the effect that registration
of such transfer under the U.S. Securities
Act of 1933, as amended from time to time, is not required.
The directors may request from any shareholder information to determine whether any transfer should
be permitted. If such information is not forwarded, the board of directors may decline to approve
or register such transfer. The board of directors shall decline to approve or to register any
transfer of any share if the transferee shall not have been approved by applicable governmental
authorities, if such approval is required.
The registration of transfers may be suspended by the directors at such times and for such period,
not exceeding in the whole 30 days in each year, as the board of directors may from time to time
determine.
Item 9.01
Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Number
Description
3.1
Memorandum and Articles of Association of Global Indemnity plc, an Irish public limited
company
3.2
Certificate of Incorporation of Global Indemnity plc, an Irish public limited company
4.1
Assumption Agreement relating to the 6.22% Guaranteed Senior Notes, dated June 1, 2010
10.1
Global Indemnity plc Share Incentive Plan (amended and restated effective July 2, 2010)
10.2
Amendment to Global Indemnity plc Share Incentive Plan dated July 2, 2010
10.3
Deed Poll of Assumption for United America Indemnity, Ltd. Share Incentive Plan by
Global Indemnity plc, dated July 2, 2010
10.4
Global Indemnity plc Annual Incentive Awards Program (amended and restated effective
July 2, 2010)
10.5
Deed Poll of Assumption for United America Indemnity, Ltd. Annual Incentive Awards
Program by Global Indemnity plc, dated July 2, 2010
10.6
Amended and Restated Shareholders Agreement, dated July 2, 2010, by and among Global
Indemnity plc (as successor to United America Indemnity, Ltd.) and the signatories
thereto
10.7
Assignment and Assumption Agreement relating to the Amended and Restated Shareholders
Agreement, dated July 2, 2010
10.8
Indemnification Agreement between United America Indemnity, Ltd. and Fox Paine Capital
Fund II International L.P., dated July 2, 2010.
10.9
Form of Indemnification Agreement between United America Indemnity, Ltd. and certain
directors and officers of Global Indemnity plc, dated July 2, 2010
99.1
Press Release, dated July 2, 2010
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned hereunto duly authorized.
GLOBAL INDEMNITY PLC
DATE: July 2, 2010
By:
/s/ Thomas M. McGeehan
Thomas M. McGeehan
Senior Vice President and Chief Financial Officer
(Authorized Signatory)
| 1. |
The name of the Company is Global Indemnity public limited company.
|
|
| 2. |
The Company is to be a public limited company.
|
|
| 3. |
The objects for which the Company is established are:
|
| (a) |
To carry on the business of a holding company and to co-ordinate the
administration, finances and activities of any subsidiary companies or associated
companies, to do all lawful acts and things whatever that are necessary or
convenient in carrying on the business of such a holding company and in particular
to carry on in all its branches the business of a management services company, to
act as managers and to direct or coordinate the management of other companies or of
the business, property and estates of any company or person and to undertake and
carry out all such services in connection therewith as may be deemed expedient by
the Company’s Board and to exercise its powers as a shareholder of other companies.
|
||
| (b) |
To acquire the entire issued share capital of United America
Indemnity, Ltd., a Cayman Island registered company.
|
||
| (c) |
To carry on the business of consulting services regarding global
insurance brokerage, reinsurance, financial services and risk management and to
do all things usually dealt in by all persons carrying on the above mentioned
businesses of any of them likely to be required in connection with any of the
said businesses.
|
| (2) |
To acquire shares, stocks, debentures, debenture stock, bonds, obligations and
securities by original subscription, tender, purchase, exchange or otherwise and to
subscribe for the same either conditionally or otherwise, and to guarantee the
subscription thereof and to exercise and enforce all rights and powers conferred by or
incidental to the ownership thereof.
|
| (3) |
To facilitate and encourage the creation, issue or conversion of and to offer for
public subscription debentures, debenture stocks, bonds, obligations, shares, stocks,
and securities and to act as trustees in connection with any such securities and to take
part in the conversion of business concerns and undertakings into companies.
|
||
| (4) |
To purchase or by any other means acquire any freehold, leasehold or other property
and in particular lands, tenements and hereditaments of any tenure, whether subject or not
to any charges or incumbrances, for any estate or interest whatever, and any rights,
privileges or easements over or in respect of any property, and any buildings, factories,
mills, works, wharves, roads, machinery, engines, plant, live and dead stock, barges,
vessels or things, and any real or personal property or rights whatsoever which may be
necessary for, or may conveniently be used with, or may enhance the value or property of
the Company, and to hold or to sell, let, alienate, mortgage, charge or otherwise deal
with all or any such
freehold, leasehold, or other property, lands, tenements or hereditaments, rights,
privileges or easements.
|
| (5) |
To sell or otherwise dispose of any of the property or investments of the Company.
|
||
| (6) |
To establish and contribute to any scheme for the purchase of shares or subscription
for shares in the Company or its holding company to be held for the benefit of the
employees or former employees of the Company or any subsidiary of the Company including
any person who is or was a director holding salaried employment or office in the Company
or any subsidiary of the Company and to lend or otherwise provide money to the trustees of
such schemes or the employees or former employees of the Company or any subsidiary of the
Company to enable them to purchase shares of the Company or its holding company and to
formulate and carry into effect any scheme for sharing the profits of the Company or its
holding company with its employees and/or the employees of any of its subsidiaries.
|
||
| (7) |
To establish and support or aid in the establishment and support of associations,
institutions, funds, trusts and conveniences calculated to benefit and to pay premiums in
respect of any insurance policies for the benefit of, directors and ex-directors,
employees or ex-employees of the Company or the dependants or connections of such persons,
and to grant pensions and allowances and to do any acts or things or make any arrangements
or provisions enabling employees of the Company or other persons aforesaid to become
shareholders in the Company, or otherwise participate in the profits of the Company upon
such terms and in such manner as the Company thinks fit, and to make payments towards
insurance and to subscribe or guarantee money for charitable or benevolent objects or for
any exhibition or for any public, general or useful object, or any other object whatsoever
which the Company may think advisable.
|
||
| (8) |
To grant, convey, transfer or otherwise dispose of any property or asset of the
Company of whatever nature or tenure for such price, consideration, sum or other return
whether equal to or less than the market value thereof and whether by way of gift or
otherwise as the Directors shall deem fit and to grant any fee, farm grant or lease or to
enter into any agreement for letting or hire of any such property or asset for a rent or
return equal to or less than the market or rack rent therefor or at no rent and subject
to or free from covenants and restrictions as the Directors shall deem appropriate.
|
||
| (9) |
To acquire and undertake the whole or any part of the business, good-will and
assets of any person, firm or company carrying on or proposing to carry on any of the
businesses which this Company is authorised to carry on, and as part of the consideration
for such acquisition to undertake all or any of the liabilities of such person, firm or
company, or to acquire an interest in, amalgamate with, or enter into any arrangement for
sharing profits, or for co-operation, or for limiting competition or for mutual
assistance with any such person, firm or company and to give or accept by way of
consideration for any of the acts or things aforesaid or property acquired, any shares,
debentures, debenture stock or securities that may be agreed upon, and to hold and retain
or sell, mortgage or deal with any shares, debentures, debenture stock or securities so
received.
|
||
| (10) |
To apply for, purchase or otherwise acquire any patents, brevets d’invention,
licences, concessions and the like conferring any exclusive or non-exclusive or limited
rights to use or any secret or other information as to any invention which may seem
capable of being used for any of the purposes of the Company or the acquisition of which
may seem calculated directly or indirectly to benefit the Company, and to use, exercise,
develop or grant licences in respect of or otherwise turn to account the property, rights
or information so acquired.
|
||
| (11) |
To enter into partnership or into any arrangement for sharing profits, union of
interests, co-operation, joint venture, reciprocal concession or otherwise with any
person or company carrying on or engaged in or about to carry on or engage in any
business or transaction
which the Company is authorised to carry on or engage in or any business or transaction
capable of being conducted so as directly to benefit this Company.
|
| (12) |
To invest and deal with the moneys of the Company not immediately required upon
such securities and in such manner as may from time to time be determined.
|
||
| (13) |
To lend money to and guarantee the performance of the contracts or obligations
of any company, firm or person, and the repayment of the capital and principal of,
and dividends, interest or premiums payable on, any stock, shares and securities of
any company, whether having objects similar to those of this Company or not, and to
give all kinds of indemnities.
|
||
| (14) |
To engage in currency exchange and interest rate transactions including, but not
limited to, dealings in foreign currency, spot and forward rate exchange contracts,
futures, options, forward rate agreements, swaps, caps, floors, collars and any other
foreign exchange or interest rate hedging arrangements and such other instruments as are
similar to, or derived from, any of the foregoing whether for the purpose of making a
profit or avoiding a loss or managing a currency or interest rate exposure or any other
exposure or for any other purpose.
|
||
| (15) |
To guarantee, support or secure, whether by personal covenant or by mortgaging or
charging all or any part of the undertaking, property and assets (both present and
future) and uncalled capital of the Company, or by both such methods, the performance of
the obligations of, and the repayment or payment of the principal amounts of and
premiums, interest and dividends on any securities of, any person, firm or company
including (without prejudice to the generality of the foregoing) any company which is
for the time being the Company’s holding company as defined by section 155 of the
Companies Act, 1963 or a subsidiary as therein defined of any such holding company or
otherwise associated with the Company in business.
|
||
| (16) |
To borrow or secure the payment of money in such manner as the Company shall think
fit, and in particular by the issue of debentures, debenture stocks, bonds, obligations
and securities of all kinds, either perpetual or terminable and either redeemable or
otherwise and to secure the repayment of any money borrowed, raised or owing by trust
deed, mortgage, charge, or lien upon the whole or any part of the Company’s property or
assets (whether present or future) including its uncalled capital, and also by a similar
trust deed, mortgage, charge or lien to secure and guarantee the performance by the
Company of any obligation or liability it may undertake.
|
||
| (17) |
To draw, make, accept, endorse, discount, execute, negotiate and issue
promissory notes, bills of exchange, bills of lading, warrants, debentures and other
negotiable or transferable instruments.
|
||
| (18) |
To subscribe for, take, purchase or otherwise acquire and hold shares or other
interests in, or securities of any other company having objects altogether or in part
similar to those of this Company, or carrying on any business capable of being
conducted so as directly or indirectly to benefit this Company.
|
||
| (19) |
To hold in trust as trustees or as nominees and to deal with, manage and turn to
account, any real or personal property of any kind, and in particular shares, stocks,
debentures, securities, policies, book debts, claims and choses in actions, lands,
buildings, hereditaments, business concerns and undertakings, mortgages, charges,
annuities, patents, licences, and any interest in real or personal property, and any
claims against such property or against any person or company.
|
||
| (20) |
To constitute any trusts with a view to the issue of preferred and deferred or
other special stocks or securities based on or representing any shares, stocks and other
assets specifically appropriated for the purpose of any such trust and to settle and
regulate and if thought fit to
undertake and execute any such trusts and to issue, dispose of or hold any such
preferred, deferred or other special stocks or securities.
|
| (21) |
To give any guarantee in relation to the payment of any debentures, debenture
stock, bonds, obligations or securities and to guarantee the payment of interest
thereon or of dividends on any stocks or shares of any company.
|
||
| (22) |
To construct, erect and maintain buildings, houses, flats, shops and all other
works, erections, and things of any description whatsoever either upon the lands
acquired by the Company or upon other lands and to hold, retain as investments or to
sell, let, alienate, mortgage, charge or deal with all or any of the same and generally
to alter, develop and improve the lands and other property of the Company.
|
||
| (23) |
To provide for the welfare of persons in the employment of or holding office under
or formerly in the employment of or holding office under the Company including Directors
and ex-Directors of the Company and the wives, widows and families, dependants or
connections of such persons by grants of money, pensions or other payments and by forming
and contributing to pension, provident or benefit funds or profit sharing or
co-partnership schemes for the benefit of such persons and to form, subscribe to or
otherwise aid charitable, benevolent, religious, scientific, national or other
institutions, exhibitions or objects which shall have any moral or other claims to
support or aid by the Company by reason of the locality of its operation or otherwise.
|
||
| (24) |
To remunerate by cash payments or allotment of shares or securities of the Company
credited as fully paid up or otherwise any person or company for services rendered or to
be rendered to the Company whether in the conduct or management of its business, or in
placing or assisting to place or guaranteeing the placing of any of the shares of the
Company’s capital, or any debentures or other securities of the Company or in or about
the formation or promotion of the Company.
|
||
| (25) |
To enter into and carry into effect any arrangement for joint working in business
or for sharing of profits or for amalgamation with any other company or association or
any partnership or person carrying on any business within the objects of the Company.
|
||
| (26) |
To distribute
in specie
or otherwise as may be resolved, any assets of the Company
among its members and in particular the shares, debentures or other securities of any
other company belonging to this Company or of which this Company may have the power of
disposing.
|
||
| (27) |
To vest any real or personal property, rights or interest acquired or belonging to
the Company in any person or company on behalf of or for the benefit of the Company, and
with or without any declared trust in favour of the Company.
|
||
| (28) |
To transact or carry on any business which may seem to be capable of being
conveniently carried on in connection with any of these objects or calculated directly
or indirectly to enhance the value of or facilitate the realisation of or render
profitable any of the Company’s property or rights.
|
||
| (29) |
To accept stock or shares in or debentures, mortgages or securities of any other
company in payment or part payment for any services rendered or for any sale made to or
debt owing from any such company, whether such shares shall be wholly or partly paid up.
|
||
| (30) |
To pay all costs, charges and expenses incurred or sustained in or about the
promotion and establishment of the Company or which the Company shall consider to be
preliminary thereto and to issue shares as fully or in part paid up, and to pay out of
the funds of the Company all brokerage and charges incidental thereto.
|
||
| (31) |
To procure the Company to be registered or recognised in any foreign country or
in any colony or dependency of any such foreign country.
|
| (32) |
To do all or any of the matters hereby authorised in any part of the world or in
conjunction with or as trustee or agent for any other company or person or by or through
any factors, trustees or agents.
|
||
| (33) |
To make gifts or grant bonuses to the Directors or any other persons who are or
have been in the employment of the Company including substitute and alternate
directors.
|
||
| (34) |
To do all such other things that the Company may consider incidental or conducive
to the attainment of the above objects or as are usually carried on in connection
therewith.
|
||
| (35) |
To carry on any business which the Company may lawfully engage in and to do
all such things incidental or conducive to the business of the Company.
|
||
| (36) |
To make or receive gifts by way of capital contribution or otherwise.
|
|
|
NOTE: |
It is hereby declared that the word “company” in this clause, except where used
in reference to this Company shall be deemed to include any partnership or other body
of persons whether incorporated or not incorporated and whether domiciled in Ireland or
elsewhere and the intention is that the objects specified in each paragraph of this
clause shall except where otherwise expressed in such paragraph be in no way limited or
restricted by reference to or inference from the terms of any other paragraph.
|
| 4. |
The liability of the members is limited.
|
|
| 5. |
The share capital of the Company is €40,000 and US$100,000 divided into 40,000 deferred
shares of €1 each, 600,000,000 A ordinary shares of US$ 0.0001 each, 300,000,000 B ordinary
shares of US$ 0.0001 each and 100,000,000 preferred shares of US$0.0001 each.
|
|
| 6. |
The shares forming the capital, increased or reduced, may be increased or reduced and be
divided into such classes and issued with any special rights, privileges and conditions or
with such qualifications as regards preference, dividend, capital, voting or other special
incidents, and be held upon such terms as may be attached thereto or as may from time to time
be provided by the original or any substituted or amended articles of association and
regulations of the Company for the time being, but so that where shares are issued with any
preferential or special rights attached thereto such rights shall not be alterable otherwise
than pursuant to the provisions of the Company’s articles of association for the time being.
|
| Names, addresses and descriptions of subscribers | Number of shares taken by each subscriber | |
|
|
||
|
For and on behalf of
|
Thirty Nine Thousand, Nine Hundred and | |
|
United America Indemnity, Ltd.,
|
Ninety Four Ordinary Shares | |
|
Walker House,
|
||
|
87 Mary Street,
|
||
|
George Town,
|
||
|
Grand Cayman,
|
||
|
KY1-9002,
|
||
|
Cayman Islands
|
||
|
|
||
|
For and on behalf of
|
||
|
Larry Allen Frakes
|
One Ordinary Share | |
|
1653 Yardley Court
|
||
|
West Chester, Pennsylvania
|
||
|
19380
|
||
|
United States
|
||
|
|
||
|
For and on behalf of
|
||
|
Thomas Michael McGeehan
|
One Ordinary Share | |
|
572 Saratoga Road
|
||
|
King of Prussia
|
||
|
PA 19406
|
||
|
|
||
|
For and on behalf of
|
||
|
Linda Hohn
|
One Ordinary Share | |
|
153 Gulph Hills Road
|
||
|
Radnor
|
||
|
PA 19087
|
||
|
|
||
|
For and on behalf of
|
||
|
Edward M.Rafter
|
One Ordinary Share | |
|
1 Yearling Chase
|
||
|
Mount Laurel
|
||
|
NJ 08054
|
||
|
|
||
|
For and on behalf of
|
||
|
Troy Santora
|
One Ordinary Share | |
|
Woodbourne Place #7
|
||
|
28 Woodbourne Avenue
|
||
|
Pembroke HM08
|
||
|
Bermuda
|
||
|
|
||
|
For and on behalf of
|
||
|
Caroline M. Tate
|
One Ordinary Share | |
|
813 Judie Lane
|
||
|
Ambler, PA 19002
|
||
|
|
||
|
Dated the 25
th
day of February 2010
|
||
|
|
||
|
Witness to the above signatures:
|
||
|
Ashley Mayne
|
||
|
Purvis House
|
||
|
Victoria Place
|
||
|
29 Victoria Street
|
||
|
PO Box HM 716
|
||
|
Hamilton HMCX
|
||
|
Bermuda
|
Companies Acts 1963 to 2009
A PUBLIC COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
-of-
GLOBAL INDEMNITY PUBLIC LIMITED COMPANY
(Amended and restated by Special Resolution dated July 2, 2010)
PRELIMINARY
1.
The regulations contained in Table A in the First Schedule to the Companies Act, 1963 shall
not apply to the Company.
2.
(a) In these articles:
“Act”
means the Companies Act, 1963 (No. 33 of 1963) as amended by the Companies Acts 1977 to 2005,
Parts 2 and 3 of the Investment Funds, Companies and Miscellaneous Provisions Act 2006 and the
Companies (Amendment) Act 2009 and all statutory instruments which are to be read as one with,
or construed, or to be read together with the Companies Acts and every statutory modification
and re-enactment thereof for the time being in force.
“Affiliate”
shall have the meaning ascribed to such term in Rule 12b-2 of the Exchange Act.
“1983 Act”
the Companies (Amendment) Act, 1983.
“1990 Act”
means the Companies Act, 1990 (No. 33 of 1990).
“Acts”
means the Companies Acts 1963 to 2005, Parts 2 and 3 of the Investment Funds, Companies and
Miscellaneous Provisions Act 2006 and the Companies (Amendment) Act 2009 and all statutory
instruments which are to be read as one with, or construed, or to be read together with the
Companies Acts and every statutory modification and re-enactment thereof for the time being in
force.
“Address”
includes any number or address used for the purposes of communication by way of electronic mail
or other electronic communication.
“Appraised Value”
with respect to any ordinary share means, as of any specified date, the value of such ordinary
share as of such date as determined by an independent appraiser retained by the Company and
reasonably acceptable to the shareholder the
ordinary shares of which the Company has elected to purchase,
redeem or assign the right to purchase pursuant to article 8.
“Attribution Percentage”
means, with respect to a shareholder and a Tentative 9.5% U.S. Shareholder, the percentage of
the shareholder’s shares that are treated as Controlled Shares of such Tentative 9.5% U.S.
Shareholder.
these “articles”
means the articles of association of which this article 2 forms part, as the same may be amended
and may be from time to time and for the time being in force.
“Business Combination
Transaction”
means any transaction, whether effected by means of a share purchase or other means, following
which any person (other than Fox Paine & Company, LLC and its Affiliates) would have a majority
of the votes represented by issued and outstanding shares and entitled to be cast at any general
meeting of the Company.
“Business Day”
means any day except a Saturday, Sunday or other day on which banks in either of Dublin, Ireland
or New York City, United States are closed for business.
“Clear Days”
in relation to the period of notice, that period excluding the day when the notice is given or
deemed to be given and the day for which it is given or on which it is to take effect.
“Code”
means the United States Internal Revenue Code of 1986, as amended from time to time, or any
United States federal statute then in effect that has replaced such statute, and a reference to
a particular section thereof shall be deemed to include a reference to the comparable section,
if any, of such replacement statute.
the “Company”
means the company whose name appears in the heading to these articles.
“Confidential Information”
shall have the meaning given to such term in article 5(d).
“Controlled Shares”
means, in reference to any person, all shares that such person owns or is deemed to own
directly, indirectly (within the meaning of Section 958(a)(2) of the Code) or constructively
(within the meaning of Section 958(b) of the Code and Treasury Regulations promulgated
thereunder and under Section 957 of the Code).
the “Directors” or the “Board”
means the directors for the time being of the Company or the directors present at a meeting of
the board of directors and includes any person occupying the position of director by whatever
name called.
“Dividend Periods”
shall have the meaning given to such term in article 3(e)(ii).
“Electronic communication”
has the meaning given to those words in the Electronic Commerce Act 2000.
“Electronic signature”
has the meaning given to those words in the Electronic Commerce Act 2000.
“Exchange”
shall mean any securities exchange or other system on which any shares of the Company may be
listed or otherwise authorised for trading from time to time, including, as may be applicable,
The New York Stock Exchange and The NASDAQ Global Market.
“Exchange Act”
means the United States Securities Exchange Act of 1934, as amended from time to time, and the
rules and regulations promulgated thereunder.
“Fair Value”
with respect to any share means, as of any specified date, (a) if such shares are not traded on
any Exchange, the fair market value per share as determined by the Board without a minority
discount but with an appropriate liquidity discount, such value and liquidity discount, if any,
as determined by the Board, or (b) if such shares are traded on any Exchange, the fair market
value per share as determined by the Board based on the last sales price per share as at the
NASDAQ market close or if there is none, the average of the bid and asked price per share, in
each case for the eight (8) Business Days prior to such date. If a shareholder disagrees with
the price so determined by the Board pursuant to (a), the Fair Value shall be the Appraised
Value. The Fair Value per A ordinary share as of any specified date shall be identical to the
Fair Value per B ordinary share on such date.
“Fox Paine”
means Fox Paine & Company, LLC and any of its Affiliates.
“FPC Shareholder”
has the meaning set forth in article 74.
the “Group”
means the Company and its subsidiaries for the time being.
the “holder”
in relation to any share, the member whose name is entered in the Register as the holder of the
share or, where the context permits, the members whose names are entered in the Register as the
joint holders of shares.
“Indirect”
when referring to a holder of shares, means ownership of shares within the meaning of Section
958(a)(2) of the Code.
the “Office”
means the registered office for the time being of the Company.
“paid up”
means paid up as to the nominal value and any premium payable in respect of the issue of any
shares and includes credited as paid up.
“Purchase Notice”
means a written notice of the Board’s determination to either
(i) redeem a shareholder’s shares, or (ii) require a
shareholder to sell shares, which notice shall specify the
date on which any such shares are to be redeemed or purchased
and the price at which such shares are to be redeemed or
purchased in accordance with article 8(b).
“Redeemable Shares”
means redeemable shares in accordance with Section 206 of the 1990 Act.
“Register”
means the register of members to be kept as required in accordance with Section 116 of the
Act.
“Required Sale”
shall have the meaning set forth in article 8(c).
“Required Seller”
shall have the meaning given such term in article 8(b).
the “seal”
means the common seal of the Company.
the “Secretary”
means any person appointed to perform the duties of the secretary or assistant secretary of
the Company from time to time and for the time being.
“Service”
shall have the meaning given to such term in article 5(d).
“Signed”
includes a signature or representation of a signature affixed by mechanical means.
“Special Resolution”
means a special resolution of the Company’s members within the meaning of Section 141 of the
Act.
“Tentative 9.5% U.S.
Shareholder”
means a U.S. Person other than Fox Paine or a 13D Group in which Fox Paine is a participant,
that, but for adjustments to the voting rights of shares pursuant to article 4, would be a
9.5% U.S. Shareholder.
“U.S. Person”
means a “United States person” as defined in Section 957(c) of the Code.
“13D Group”
means, with respect to voting securities of the Company, any group of persons formed
for the purpose of acquiring, holding, voting or disposing of such securities which would be
required under Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder to file a statement on Schedule 13D with the United States Securities and Exchange
Commission as a “person” within the meaning of Section 13(d)(3) of the Exchange Act if such
group beneficially owned voting securities representing more than 5% of the total combined
voting power of all such securities then outstanding.
|
“9.5% U.S. Shareholder”
|
means a U.S. Person other than Fox Paine or a 13D Group in which Fox Paine is a participant, the Controlled Shares of which constitute nine and one-half per cent. (9.5%) or more of the voting power of all issued and outstanding shares of the Company and that would be generally required to recognise income with respect to the Company under Section 951(a)(1) of the Code, if the Company were a controlled foreign corporation as defined in Section 957 of the Code and if the ownership threshold under Section 951(b) of the Code were 9.5%. |
| (b) |
Expressions in these articles referring to writing shall be construed, unless the
contrary intention appears, as including references to printing, lithography,
photography and any other modes of representing or reproducing words in a visible form
except as provided in these articles and/or where it constitutes writing in electronic
form sent to the Company, and the Company has agreed to its receipt in such form.
Expressions in these articles referring to execution of any document shall include any
mode of execution whether under seal or under hand or any mode of electronic signature
as shall be approved by the Directors. Expressions in these articles referring to
receipt of any electronic communications shall, unless the contrary intention appears,
be limited to receipt in such manner as the Company has approved.
|
| (c) |
Unless the contrary intention appears, words or expressions contained in these
articles shall bear the same meaning as in the Acts or in any statutory modification
thereof in force at the date at which these articles become binding on the Company.
|
||
| (d) |
References herein to any enactment shall mean such enactment as the same may be
amended and may be from time to time and for the time being in force.
|
||
| (e) |
The masculine gender shall include the feminine and neuter, and vice versa, and the
singular number shall include the plural, and vice versa, and words importing persons
shall include firms or companies or body corporates.
|
| (f) |
Reference to US$, USD or dollars shall mean the currency of the United States of
America and to €, euro, EUR or cent shall mean the currency of Ireland.
|
| 3. |
|
| (a) |
The share capital of the Company is €40,000 and US$100,000 divided into
€40,000 deferred shares of €1 each (the “
Euro Share Capital
”), 600,000,000 A
ordinary shares of US$0.0001 each, 300,000,000 B ordinary shares of US$0.0001 each and
100,000,000 preferred shares of US$0.0001 each.
|
| (b) |
The rights and restrictions attaching to the ordinary shares shall be as follows:
|
| (i) |
subject to the right of the Company to set record dates for the
purposes of determining the identity of members entitled to notice of and/or to
vote at a general meeting and the authority of the Board and chairman of the
meeting to maintain order and security, the right to attend any general meeting
of the Company and, subject to the voting limitations set out in article 4, to
exercise one (1) vote per A ordinary share and ten (10) votes per B ordinary
share held at any general meeting of the Company:
|
| (ii) |
the right to participate
pro rata
in all dividends declared by
the Company in accordance with the relevant provisions of these articles; and
|
| (iii) |
the right, in the event of the Company’s winding up, to
participate
pro rata
in the total assets of the Company.
|
||
|
The rights attaching to the ordinary shares may be subject to the terms of
issue of any series or class of preferred shares allotted by the Directors
from time to time in accordance with article 3(e).
|
|||
|
The Euro Share Capital (i) does not convey on the holder the right to be
paid a dividend or to receive notice of or to attend, vote and speak at any
meeting of the members of the Company in respect of those shares, and (ii)
confers the right on a return of capital, on a winding-up or otherwise, only
to repayment of the nominal amount paid up on the Euro Share Capital but
only after repayment of the ordinary shares of the Company in full.
|
| (c) |
All ordinary shares shall rank
pari
passu
with each other in
all respects. Notwithstanding anything in the memorandum of association of the Company
or these articles to the contrary;
|
| (i) |
the holders of ordinary shares shall be entitled to receive,
from time to time, when and as declared, such cash dividends as the Board, in
its discretion, or the Company may from time to time determine, out of such
funds as are legally available therefor, in proportion to the number of shares
held by them, respectively, without regard to class.
|
| (ii) |
the holders of ordinary shares shall be entitled to receive,
from time to time, when and as declared, such dividends of shares or other
securities of the Company or other property as the Board, in its discretion, or
the Company may determine, out of such funds as are legally available therefor.
Such dividends on, or bonus issues or share splits of, any class of ordinary
shares shall not be paid or issued unless paid or issued on all classes of
ordinary shares, in which case such dividends shall be paid or issued only in
shares of that class. Any decrease in the number of shares of any class of
ordinary shares resulting from a combination or consolidation of shares or
other capital reclassification shall not be permitted unless parallel action is
taken with respect to each other class of ordinary shares, so that the number
of shares of each class of ordinary shares outstanding shall be decreased
proportionately.
|
| (d) |
|
| (i) |
Each B ordinary share shall be convertible at the option of the
holder thereof into one A ordinary share by means of the Redemption Mechanism
set out in Article 3(d)(ii)) below.
|
| (ii) |
Subject to section 210(4) of the 1990 Act and unless the Board
determines otherwise, if (i) a holder of B ordinary shares ( the
“Converter”
)
wishes to effect a conversion of any such shares into A ordinary shares; or
(ii) a person (the “
Transferee
”) agrees with any holder of B ordinary shares
that it be transferred, whether or not for value, any of the B ordinary shares
in the Company of that holder (the “
Redeeming Member
”), immediately prior to
any such conversion being effected or the anticipated completion of the
transfer agreement in (ii) above, the shares shall be redeemed in accordance
with the mechanism set out below (the “
Redemption Mechanism
”), such mechanism
to be effected in accordance with such procedures and as to such type or types of
|
|
transactions as the Board may have resolved and published
(if required) from time to time. Under the Redemption Mechanism, the
Converter or the Redeeming Member shall be deemed to have given the Company
an irrevocable notice of its wish that the shares the subject of the
proposed conversion or the transfer agreement (the “
Notified Shares
”) be
immediately converted so as to be redeemable, subject to the Converter’s or
the Redeeming Member’s right to notify the Company of its unwillingness to
have such shares so converted as provided for under Section 210(2) of the
1990 Act where it wishes to have the shares transferred. The Notified
Shares shall thereafter be redeemed immediately before the completion of any
such conversion or such anticipated transfer for their aggregate nominal
value (the “
Redemption Amount
”) and cancelled or held in treasury in
accordance with Part XI of the 1990 Act and the Company will pay such amount
to a third party, as nominated by the Board (the “
Redemption Agent
”), who
will irrevocably be deemed to have been appointed as Redemption Agent and
the Converter or the Redeeming Member shall be deemed to have given its
consent to the Redemption Agent receiving the Redemption Amount and applying
such amount in the manner set out below. Moreover, the Redemption Agent
shall hold the Redemption Amount on trust and apply it in respect of an
allotment and issue of (as applicable):
|
| (e) |
The Board is empowered to cause the preferred shares to be issued from time to
time as shares of one or more series of preferred shares, and in the resolution or
resolutions providing for the issue of shares of each particular series, before
issuance, the Board is expressly authorised to fix:
|
| (i) |
the distinctive designation of such series and the number of
shares which shall constitute such series, which number may be increased
(except as otherwise provided by the Board in creating such series) or
decreased (but not below the number of shares thereof then in issue) from time
to time by resolution of the Board;
|
| (ii) |
the dividend rate on shares of such series and preferences with
respect thereto, if any, the dividend payment dates, the periods in respect of
which dividends are payable (“
Dividend Periods
”), whether such dividends shall
be cumulative and, if cumulative, the date or dates from which dividends shall
accumulate and whether such dividends may be payable in cash or in kind;
|
| (iii) |
the terms, if any, on which shares of such series may be
redeemed, including without limitation, the redemption price or prices for such
series, which may consist of a redemption price or scale of redemption prices
applicable only to redemption in connection with a sinking fund (which term as
used herein shall include any fund or requirement for the periodic purchase or
redemption of shares), and the same or a different redemption price or scale of
redemption prices applicable to any other redemption;
|
| (iv) |
the terms and amount of any sinking fund provided for the
purchase or redemption of shares of such series;
|
| (v) |
the amount or amounts which shall be paid to the holders of
shares of such series in case of liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary;
|
| (vi) |
the terms, if any, upon which the holders of shares of such
series may convert shares thereof into shares of any other class or classes or
of any one or more series of the same class or of another class or classes;
|
| (vii) |
the voting rights, full or limited, if any, of the shares of
such series and whether or not and under what conditions the shares of such
series (alone or together with the shares of one or more other series having
similar provisions) shall be entitled to vote separately as a single class;
|
| (viii) |
whether or not the holders of shares of such series, as such, shall have any
pre-emptive or preferential rights to subscribe for or purchase shares of any
class or series of shares of the Company, now or hereafter authorised, or any
securities convertible into, or warrants or other evidences of optional rights
to purchase or subscribe for, shares of any class or series of the Company, now
or hereafter authorised;
|
| (ix) |
whether or not the issuance of additional shares of such
series, or of any shares of any other series, shall be subject to restrictions
as to issuance, or as to the preferences, rights and qualifications of any such
other series; and
|
| (x) |
such other rights, preferences and limitations as may be
permitted to be fixed by the Board of the Company under the laws of Ireland as
in effect at the time of the creation of such series.
|
| (f) |
No dividend shall be declared and set apart for payment on any series of
preferred shares in respect of any Dividend Period unless all dividends have been paid,
or declared and set apart for payment, in full on all preferred shares of each other
series entitled to cumulative dividends at the time outstanding that rank senior or
equally as to dividends with the series in question (“
Senior Preferred Shares
”) and
there shall likewise be or have been paid, or declared and set apart for payment, on
all Senior
Preferred Shares, dividends rateably in accordance with the sums that would be
payable on such preferred shares.
|
| (g) |
If, upon the winding up of the Company, the assets of the Company distributable
among the holders of any one or more series of preferred shares that (a) are entitled
to a preference over the holders of the ordinary shares upon such winding up, and (b)
rank equally in connection with any such distribution, shall be insufficient to pay in
full the preferential amount to which the holders of such preferred shares shall be
entitled, then such assets, or the proceeds thereof, shall be distributed among the
holders of each such series of preferred shares rateably in accordance with the sums
that would otherwise have been payable on such distribution if all sums payable were
discharged in full.
|
| (h) |
An ordinary share shall be deemed to be a Redeemable Share on, and from the
time of, the existence or creation of an agreement, transaction or trade between the
Company and any third party pursuant to which the Company acquires or will acquire
ordinary shares, or an interest in ordinary shares, from the relevant third party. In
these circumstances, the acquisition of such shares, or an interest in such shares, by
the Company shall constitute the redemption of a Redeemable Share in accordance with
Part XI of the 1990 Act.
|
| 4. |
Adjustment of voting power
|
| (a) |
The voting power of all shares is hereby adjusted (and shall be automatically
adjusted in the future) to the extent necessary so that there is no 9.5% U.S.
Shareholder. The Board shall implement the foregoing in the manner provided herein;
provided, however, that the foregoing provision and the remainder of this article 4
shall not apply in the event that one person or 13D Group beneficially owns (as used in
Rule 13d-3 promulgated under the Exchange Act) greater than 75% of the voting power or
value of the issued shares of the Company; provided further, that such adjustment shall
not apply to Fox Paine or any 13D Group in which Fox Paine participates.
|
| (i) |
the Board shall from time to time, including prior to any time
at which a vote of shareholders is taken, take all reasonable steps necessary
to ascertain, including those specified in article 5, through communications
with shareholders or otherwise, whether there exists, or will exist at the time
any vote of shareholders is taken, a Tentative 9.5% U.S. Shareholder;
|
| (ii) |
in the event that a Tentative 9.5% U.S. Shareholder exists, the
aggregate votes conferred by shares held by a shareholder and treated as
Controlled Shares of that Tentative 9.5% U.S. Shareholder shall be reduced to
the extent necessary such that the Controlled Shares of the Tentative 9.5% U.S.
Shareholder will constitute less than 9.5% of the voting power of all issued
shares. In applying the previous sentence where shares held by more than one
shareholder are treated as Controlled Shares of such Tentative 9.5% U.S.
Shareholder, the reduction in votes shall apply to such shareholders in
descending order according to their respective Attribution Percentages;
provided that, in the event of a tie, the reduction shall apply
pro
rata
to the shareholders. The votes of shareholders owning no shares
treated as Controlled Shares of any Tentative 9.5% U.S. Shareholder shall, in
the aggregate, be increased by the same number of votes subject to reduction as
described above. Such increase shall apply to all such shareholders in
proportion to their voting power at that time; provided that such increase
shall be limited to the extent necessary to avoid causing any U.S. Person to be
a 9.5% U.S. Shareholder. The adjustments of voting power described in
this article 4 shall apply repeatedly until there is no 9.5% U.S.
Shareholder. The Board may deviate from any of the principles described in
this article 4 and determine that shares held by a shareholder shall carry
different voting rights as it determines appropriate (A) to avoid the
existence of any 9.5% U.S. Shareholder or (B) to avoid adverse tax, legal or
regulatory consequences to the Company, any subsidiary of the Company, or
any other shareholder or its Affiliates. For the avoidance of doubt, in
applying the provisions of this article 4, a share may carry a fraction of a
vote.
|
| (b) |
In addition to the provisions of article 4(a), shares shall not carry any right
to vote to the extent that the Board determines, in its sole and absolute discretion,
that it is necessary that such shares should not carry the right to vote in order to
avoid adverse tax, legal or regulatory consequences to the Company, any subsidiary of
the Company, or any other direct or indirect holder of shares or its Affiliates;
provided
that no adjustment pursuant to this sentence shall cause any person to
become a 9.5% U.S. Shareholder.
|
| (c) |
Prior to any date on which shareholders shall vote on any matter, the Board
shall:
|
| (i) |
retain the services of an internationally recognised accounting
firm or organization with comparable professional capabilities in order to
assist the Company in applying the principles of this article 4;
|
| (ii) |
obtain from such firm or organisation a statement describing
the information obtained and procedures followed and setting forth the
determinations made with respect to this article 4; and,
|
| (iii) |
notify each shareholder of the voting power conferred by its
shares determined in accordance with this article 4.
|
| (d) |
Any determination by the Board as to any adjustments to voting power of any
share made pursuant to this article 4 shall be final and binding.
|
| 5. |
Provision of certain information
|
| (a) |
The Board shall have the authority to request from any direct or indirect
holder of shares, and such holder shall provide, such information as the Board may
reasonably request for the purpose of determining whether any holder’s voting rights
are to be adjusted. If such holder fails to respond to such a request, or submits
incomplete or inaccurate information in response to such a request, the Board may in
its sole and absolute discretion determine that such holder’s shares shall carry no
voting rights, in which case such shares shall not carry any voting rights until
otherwise determined by the Board in its sole and absolute discretion.
|
| (b) |
Any direct or indirect holder of shares shall give notice to the Company within
ten days (10) following the date that such holder acquires actual knowledge that it is
the owner of Controlled Shares of 9.5% or more of the voting power of all issued and
outstanding shares.
|
| (c) |
Notwithstanding the foregoing, no shareholder shall be liable to any other
shareholder or the Company for any losses or damages resulting from such holder’s
failure to respond to, or submission of incomplete or inaccurate information in
response to, a request under paragraph (a) of this article or from such shareholder’s
failure to give notice under paragraph (b) of this article.
|
| (d) |
Any information provided by any shareholder to the Company pursuant to this
article 5 or for purposes of making the analysis required by article 4, 8, 17(g) or 25,
shall be deemed “confidential information” (the “
Confidential Information
”) and shall
be used by the Company solely for the purposes contemplated by such articles (except as
may be required otherwise by applicable law or regulation). The Company shall hold such
Confidential Information in strict confidence and shall not disclose any Confidential
Information that it receives, except: (i) to the U.S. Internal Revenue Service (the
“
Service
”) if and to the extent the Confidential Information is required by the
Service; (ii) to any outside legal advisers or accounting firm engaged by the Company
to make determinations regarding the relevant articles; or (iii) to officers, employees
or outside advisers of the Company, for the purposes set forth in article 5(e) or (iv)
as otherwise required by applicable law or regulation.
|
| (e) |
The Company shall take all measures practicable to ensure the continued
confidentiality of the Confidential Information and shall grant the persons referred to
in article 5(d)(ii) or (iii) access to the Confidential Information only to the extent
necessary to allow them to assist the Company in any analysis required by article 4, 8,
17(g) or 25 or to determine whether the Company would realise any income that would be
included in the income of any shareholder (or any interest holder, whether direct or
indirect, of any shareholder) by operation of Section 953(c) of the Code. Prior to
granting access to the Confidential Information to such persons or to any officer or
employee as set forth below, the Company shall inform them of its confidential nature
and of the provisions of this article 5 and shall require them to abide by all the
provisions of this article 5. The Company shall not disclose the Confidential
Information to any Director (other than a Director that is also a senior executive
except as required by law or regulation, upon request to the Company).
|
| (f) |
For the avoidance of doubt, the Company shall be permitted to disclose to the
shareholders and others the relative voting percentages of the shareholders after
application of article 4. At the written request of a shareholder, the Confidential
Information of such shareholder shall be destroyed or returned to such shareholder
after the later to occur of:
|
| (i) |
such shareholder no longer being a shareholder; or
|
| (ii) |
the expiration of the applicable statute of limitations with
respect to any Confidential Information obtained for purposes of engaging in
any tax-related analysis.
|
| (g) |
The Company shall: (i) notify a shareholder immediately of the existence, terms
and circumstances surrounding any request made to the Company to disclose any
Confidential Information provided by or with respect to such shareholder and, prior to
such disclosure, shall permit such shareholder a reasonable period of time to seek a
protective order or other appropriate remedy or waive compliance with the provisions of
this article 5; and (ii) if, in the absence of a protective order or waiver, such
disclosure is required in the opinion of legal advisers to the Company, the Company
shall make such disclosure without liability hereunder; provided that the Company shall
furnish only that portion of the Confidential Information that is legally required,
shall give such shareholder notice of the information to be disclosed as far in advance
of its disclosure as practicable and, upon the request of such shareholder and at its
expense, shall use reasonable efforts to ensure that confidential treatment will be
accorded to all such disclosed information.
|
| 6. |
Subject to the provisions of Part XI of the 1990 Act and the other provisions of this
article, the Company may:
|
| (a) |
pursuant to Section 207 of the 1990 Act, issue any shares of the Company which
are to be redeemed or are liable to be redeemed at the option of the Company or the
member on such terms and in such manner as may be determined by the Company in general
meeting (by Special Resolution) on the recommendation of the Directors;
|
| (b) |
redeem shares of the Company on such terms as may be contained in, or be
determined pursuant to the provisions of, these articles. Subject as aforesaid, the
Company may cancel any shares so redeemed or may hold them as treasury shares and
re-issue such treasury shares as shares of any class or classes or cancel them;
|
| (c) |
subject to and in accordance with the provisions of the Acts and without
prejudice to any relevant special rights attached to any class of shares, pursuant to
Section 211 of the 1990 Act, purchase any of its own shares (including any Redeemable
Shares and without any obligation to purchase on any
pro rata
basis as between members
or members of the same class) and may cancel any shares so purchased or hold them as
treasury shares (as defined in Section 209 of the 1990 Act) and may reissue any such
shares as shares of any class or classes or cancel them; or
|
| (d) |
pursuant to Section 210 of the 1990 Act, convert any of its shares into
Redeemable Shares provided that the total number of shares which shall be redeemable
pursuant to this authority shall not exceed the limit in Section 210(4) of the 1990
Act.
|
| 7. |
Redemption pursuant to the terms of a Business Combination
|
| (a) |
Subject to Part XI of the 1990 Act and pursuant to and in accordance with
Section 210 of the 1990 Act, the ordinary shares may be converted into Redeemable
Shares and redeemed by the Company (or as may otherwise be determined by the Company in
a general meeting by ordinary resolution) upon approval by the Board of, and an
ordinary resolution of the shareholders adopting, any agreement entered into by the
Company relating to a Business Combination Transaction involving the Company.
|
| (b) |
The manner and terms of such redemption pursuant to this article 7, including
the consideration to be received by the holders of ordinary shares in such redemption,
which consideration may consist of cash, securities or other property, shall be set
forth in the agreement relating to a Business Combination Transaction approved by the
Board and an ordinary resolution of the shareholders.
|
| (c) |
The consideration to be received by all holders of ordinary shares shall be
identical regardless of the class of ordinary shares held by such holders.
|
| 8. |
Required sale of shares
|
| (a) |
If the Board reasonably determines that any shareholder’s ownership of shares
(after giving effect to any voting limitations set forth in article 4) will result in a
non-
de minimis
adverse tax, legal or regulatory consequence to the Company, any of its
subsidiaries or any other direct or indirect holder of shares in the Company or its
Affiliates, the Company shall have the option but not the obligation to:
|
| (i) |
redeem; or
|
||
| (ii) |
repurchase; or
|
||
| (iii) |
assign to a third party the right to purchase;
|
| (b) |
In the event that the Company determines, pursuant to this article 8, to
redeem, repurchase or assign to a third party the right to purchase shares of a
shareholder (a “
Required Seller
”), the Company shall provide a Purchase Notice to such
shareholder. The Company may revoke the Purchase Notice at any time prior to the
closing of such sale or redemption.
|
| (c) |
The closing of a sale or redemption of shares pursuant to this article 8 (a
“
Required Sale
”) shall take place at a location and date selected by the Company and
set forth in the Purchase Notice which shall be delivered at least five (5) Business
Days prior to the closing date specified therein; provided, however, that such closing
date shall be no earlier than the later of: (i) five (5) Business Days after a Purchase
Notice is given with respect to a purchase or redemption of shares; and (ii) five (5)
Business Days after the date of determination of Appraised Value in the event that a
shareholder objects to the Board’s determination of Fair Value contained in a Purchase
Notice. Payment of the Purchase Price shall be by wire transfer at such closing.
|
| (d) |
The Company shall pay the costs and fees of such appraiser, and the decision of
the appraiser making such determination of Appraised Value shall be final and binding
on the Company and the shareholder. Such Appraised Value shall be determined as a pro
rata portion of the value of the Company taken as a whole, based on the higher of: (a)
the value derived from a hypothetical sale of the Company as a going concern by a
willing seller to a willing buyer (neither acting under any compulsion); and (b) the
liquidation value of the Company. No discount shall be applied on account of: (i) the
purchased shares representing a minority interest; (ii) any lack of liquidity of the
purchased shares; (iii) the fact that the purchased shares may constitute “restricted
securities” for securities law purposes; (iv) the existence of the Company’s right, as
set forth in these articles and any shareholders’ agreement, to require shareholders to
sell shares to the Company or to one or more third parties designated by the Company;
or (v) the existence of the possibility of a reduction in voting power pursuant to
these articles.
|
| (e) |
Notwithstanding the provisions of this article 8, no shareholder shall be
permitted to sell shares in a Required Sale to the extent that such sale would (after
giving effect to any adjustment to voting power imposed in accordance with article 4)
cause a non-
de minimis
adverse tax, legal or regulatory consequences to the Company,
any of its subsidiaries, any other shareholder or its Affiliates.
|
| 9. |
The Company may make a payment in respect of the redemption or repurchase of its own shares
in any manner permitted by the Acts.
|
| 10. |
The holder of the shares being repurchased shall be bound to deliver up to the Company at its
registered office or such other place as the Board shall specify, the certificate(s) (if any)
thereof for cancellation and thereupon the Company shall pay to such holder the purchase or
redemption monies or consideration in respect thereof.
|
| 11. |
Any share in respect of which a Purchase Notice has been given shall not be entitled to
participate in the profits of the Company or to vote in any Company meeting in respect of the
period after the date specified as the closing date in the Purchase Notice.
|
| 12. |
Except as provided in these articles or the terms of any preferred shares, the redemption or
repurchase of any share shall not be deemed to give rise to the redemption or repurchase of
any other share.
|
| 13. |
The Board may when making payments in respect of redemption or repurchase of shares, if
authorised by the terms of issue of the shares being redeemed or repurchased or with the
agreement of the holder of such shares, make such payment either in cash or in
specie
.
|
| 14. |
Without prejudice to any special rights previously conferred on the holders of any existing
shares or class of shares or to the authority conferred on the Directors pursuant to article 3
to issue the preferred shares, any share in the Company may be issued with such preferred or
deferred or other special rights or such restrictions, whether in regard to dividend, voting,
return of capital or otherwise, as the Company may from time to time by ordinary resolution
determine.
|
| 15. |
|
| (a) |
Without prejudice to the authority conferred on the Directors pursuant to
article 17 to issue shares in the capital of the Company, if at any time the share
capital is divided into different classes of shares the rights attached to any class or
series may, whether or not the Company is being wound up, be varied or abrogated with
the consent in writing of the holders of 75% of the shares then in issue of that class,
or with the sanction of a Special Resolution passed at a separate general meeting of
the holders of the shares of that class or series. To every such meeting the provisions
of article 43 shall apply.
|
| (b) |
The redemption or purchase of preferred or ordinary shares or any class or
series of preferred shares or ordinary shares shall not constitute a variation of
rights of the preferred or ordinary holders.
|
| (c) |
The issue, redemption or purchase of any of the 100,000,000 preferred shares of
US$0.0001 per share shall not constitute a variation of the rights of the holders of
ordinary shares.
|
| 16. |
The rights conferred upon the holders of the shares of any class issued with preferred or
other rights shall not, unless otherwise expressly provided by the terms of issue of the
shares of that class, be deemed to be varied by the creation or issue of further shares
ranking
pari passu
therewith.
|
| 17. |
|
| (a) |
Subject to the provisions of these articles relating to new shares, the shares
shall be at the disposal of the Directors, and they may (subject to the provisions of
the Acts) allot, grant options or warrants over or otherwise dispose of them to such
persons, on such terms and conditions and at such times as they may consider to be in
the best interests of the Company and its members.
|
| (b) |
Subject to any requirement to obtain the approval of members under any laws,
regulations or the rules of any stock exchange to which the Company is subject, the
Board is authorised, from time to time, in its discretion, to grant such persons, for
such periods and upon such terms as the Board deems advisable, options or warrants
to purchase or subscribe for such number of shares of any class or classes as the
Board may deem advisable, and to cause warrants or other appropriate instruments
evidencing such options to be issued, provided that no such issuance of options or
warrants may be made if it will cause, in the Board’s sole and absolute discretion,
a non-
de-minimis
adverse tax, legal or regulatory consequence to the Company, any of
its subsidiaries or any direct holder of shares or its Affiliates. The Company may
grant or issue options or warrants to bearer.
|
| (c) |
The Directors are, for the purposes of Section 20 of the 1983 Act, generally
and unconditionally authorised to exercise all powers of the Company to allot and issue
relevant securities (as defined by the said Section 20) up to the amount of Company’s
authorised share capital as at the date of adoption of these articles and to allot and
issue any shares purchased by the Company pursuant to the provisions of Part XI of the
1990 Act and held as treasury shares and this authority shall expire five years from
the date of adoption of these articles of association.
|
| (d) |
The Directors are hereby empowered pursuant to sections 23 and 24(1) of the
1983 Act to allot equity securities within the meaning of the said section 23 for cash
pursuant to the authority conferred by paragraph (c) of this article as if section
23(1) of the said 1983 Act did not apply to any such allotment. The Company may before
the expiry of such authority make an offer or agreement which would or might require
equity securities to be allotted after such expiry and the Directors may allot equity
securities in pursuance of such an offer or agreement as if the power conferred by this
paragraph (d) had not expired.
|
| (e) |
All shares shall be issued fully paid as to their nominal value and any premium
determined by the Board at the time of issue and shall be non-assessable.
|
| (f) |
The Company may issue share warrants to bearer pursuant to section 88 of the
Act.
|
| (g) |
Notwithstanding the foregoing or other provisions of these articles, the
Company shall not issue any shares or grant options or warrants in a manner that the
Board, in its sole and absolute discretion, determines may result by reason of such
issuance or grant in a non-
de minimis
adverse tax, legal or regulatory consequence to
the Company, any of its subsidiaries or any direct or indirect holder of its shares or
its Affiliates.
|
| (h) |
Nothing in these articles shall preclude the Directors from recognising a
renunciation of the allotment of any shares by any allottee in favour of some other
person.
|
| 18. |
Subject to the Acts, the Company may pay commission to any person in consideration of a
person subscribing or agreeing to subscribe, whether absolutely or conditionally, for any
shares in the Company or procuring or agreeing to procure subscriptions, whether absolute or
conditional, for any shares in the Company on such terms and subject to such conditions as the
Directors may determine, including, without limitation, by paying cash or allotting and
issuing fully or partly paid shares or any combination of the two. The Company may also, on
any issue of shares, pay such brokerage as may be lawful.
|
| 19. |
Except as required by law, no person shall be recognised by the Company as holding any share
upon any trust, and the Company shall not be bound by or be compelled in any way to recognise
(even when having notice thereof) any equitable, contingent, future or partial interest in any
share or any interest in any fractional part of a share or (except only as by these articles
or by law otherwise provided) any other rights in respect of any share except an absolute
right to the entirety thereof in the holder.
|
| 20. |
Every person the name of which is entered as a shareholder in the Register of Members shall,
without payment, be entitled to a certificate in the form determined by the Board. Such
certificate may be under the seal. All certificates shall specify the share or shares held by
that person and the amount paid up thereon; provided that in respect of a share or shares held
jointly by several persons the Company shall not be bound to issue more than one certificate,
and delivery of a certificate for a share to one of several joint holders shall be sufficient
delivery to all.
|
| 21. |
If a share certificate is defaced, lost or destroyed it may be renewed on such terms, if any,
as to evidence and indemnity as the Board may think fit.
|
| 22. |
The Company shall not give, whether directly or indirectly and whether by means of a loan,
guarantee, the provision of security or otherwise, any financial assistance for the purpose of
or in connection with a purchase or subscription made or to be made by any person of or for
any shares in the Company or in its holding company, except as permitted by section 60 of the
Act.
|
| 23. |
|
| (a) |
The instrument of transfer of any share may be executed for and on behalf of
the transferor by the Secretary, and the Secretary shall be and, if so required by the
Board, the transferee deemed to have been irrevocably appointed agent for the
transferor and/or transferee of such share or shares with full power to execute,
complete and deliver in the name of and on behalf of the transferor of such share or
shares all such transfers of shares held by the members in the share capital of the
Company. The instrument of transfer shall be accompanied by the certificate, if any, of
the shares to which it relates and such other evidence as the Board may reasonably
require to show the right of the transferor to make the transfer. Any document which
records the name of the transferor, the name of the transferee, the class and number of
shares agreed to be transferred and the date of the agreement to transfer shares,
shall, once executed by the transferor or the Secretary as agent for the transferor, be
deemed to be a proper instrument of transfer for the purposes of Section 81 of the Act.
The transferor shall be deemed to remain the holder of the share until the name of the
transferee is entered on the Register in respect thereof, and neither the title of the
transferee nor the title of the transferor shall be affected by any irregularity or
invalidity in the proceedings in reference to the sale should the Directors so
determine.
|
| (b) |
The Company, at its absolute discretion, may, or may procure that a subsidiary
of the Company shall, pay Irish stamp duty arising on a transfer of shares on behalf of
the transferee of such shares of the Company. If stamp duty resulting from the transfer
of shares in the Company which would otherwise be payable by the transferee is paid by
the Company or any subsidiary of the Company on behalf of the transferee, then in those
circumstances, the Company shall, on its behalf or on behalf of its subsidiary (as the
case may be), be entitled to:
|
| (i) |
seek reimbursement of the stamp duty from the transferor or
transferee (at its discretion);
|
| (ii) |
set-off the stamp duty against any dividends payable to the
transferor or transferee (at its discretion); and,
|
| (iii) |
claim a first and permanent lien on the shares on which stamp
duty has been paid by the Company or its subsidiary for the amount of stamp
duty paid. The Company’s lien shall extend to all dividends paid on those
shares.
|
| (c) |
Notwithstanding the provisions of these articles and subject to any regulations
made under Section 239 of the 1990 Act, title to any shares in the Company may also be
evidenced and transferred without a written instrument in accordance with Section 239
of the 1990 Act or any regulations made thereunder. The Directors shall have power to
permit any class of shares to be held in uncertificated form and to implement any
arrangements they think fit for such evidencing and transfer which accord with such
regulations and in particular shall, where appropriate, be entitled to disapply or
modify all or part of the provisions in these articles with respect to the requirement
for written instruments of transfer and share certificates (if any), in order to give
effect to such regulations.
|
| 24. |
Subject to such of the restrictions of these articles and to such of the conditions of issue
of any share warrants as may be applicable, the shares of any member and any share warrant may
be transferred by instrument in writing in any usual or common form or any other form which
the Directors, in their sole and absolute discretion, may approve.
|
| 25. |
The Directors may decline to approve or register any transfer of shares if it appears to the
Directors, in their sole and absolute discretion, after taking into account, among other
things, the limitation on voting rights contained in article 4, that any non-
de minimis
adverse tax, regulatory or legal consequences to the Company, any subsidiary of the Company,
or any other direct or indirect holder of shares or its Affiliates would result from such
transfer (including if such consequence arises as a result of any U.S. Person owning
Controlled Shares constituting 9.5% or more of the value of the Company or the voting shares
of the Company (but subject to the provisions of article 4) or pursuant to article
136(d)(iv)). The Directors shall have the authority to request from any direct or indirect
holder of shares, and such holder shall provide, such information as the Directors may
reasonably request for the purpose of determining whether any transfer should be permitted.
If such information is not provided, the Directors may decline to approve or register such
transfer.
|
| 26. |
Subject to any applicable requirements of any Exchange on which the shares are listed or
traded, the Directors:
|
| (a) |
may decline to approve or to register any transfer of any share unless: (i)
such share has been registered under the U.S. Securities Act of 1933, as amended from
time to time; or, (ii) a written opinion from counsel acceptable to the Company shall
not have been obtained to the effect that registration of such transfer under the U.S.
Securities Act of 1933, as amended from time to time, is not required; and,
|
| (b) |
shall decline to approve or to register any transfer of any share if the
transferee shall not have been approved by applicable governmental authorities if such
approval is required.
|
| 27. |
The Directors may decline to recognise any instrument of transfer unless the instrument of
transfer is in respect of one class of share only.
|
| 28. |
If the Directors refuse to register a transfer they shall, within ten (10) business days
after the date on which the transfer was lodged with the Company, send to the transferor and
transferee notice of the refusal.
|
| 29. |
All instruments of transfer shall upon their being lodged with the Company remain the
property of the Company and the Company shall be entitled to retain them, but any
instruments of transfer that the Board declines to register shall (except in any case of
fraud) be returned to the person depositing the same.
|
| 30. |
In the case of the death of a member, the survivor or survivors or the legal personal
representative of the deceased survivor 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
recognised by the Company as having any title to his interest in the shares: but nothing
herein contained shall release the estate of a deceased joint holder from any liability in
respect of any share which had been jointly held by him with other persons.
|
| 31. |
Any person becoming entitled to a share in consequence of the death or bankruptcy of a member
shall, upon such evidence being produced as may from time to time properly be required by the
Directors and subject as herein provided, elect either to be registered himself as holder of
the share or to have some person nominated by him registered as the transferee thereof, but
the 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 shares by that member before his death or
bankruptcy, as the case may be.
|
| 32. |
If the person so becoming entitled elects to be registered himself, he shall deliver or send
to the Company a notice in writing signed by him stating that he so elects. If he elects to
have another person registered, he shall testify his election by executing to that person a
transfer of the share. All the limitations, restrictions and provisions of these regulations
relating to the right to transfer and the registration of transfers of shares shall be
applicable to any such notice or transfer as aforesaid as if the death or bankruptcy of the
member had not occurred and the notice of transfer were a transfer signed by that member.
|
| 33. |
A person becoming entitled to a share by reason of the death or bankruptcy of the holder
shall be entitled to the same dividends and other advantages to which he would be entitled if
he were the registered holder of the share, except that he shall not, before being registered
as a member in respect of the share, be entitled in respect of it to exercise any right
conferred by membership in relation to the meetings of the Company, including voting.
|
| 34. |
The Company may from time to time by ordinary resolution increase the authorised share
capital by such sum, to be divided into shares of such amount, as the resolution shall
prescribe.
|
| 35. |
The Company may by ordinary resolution:
|
| (a) |
consolidate and divide all or any of its share capital into shares of larger
amount than its existing shares:
|
| (b) |
convert all or any of its paid up shares into stock and reconvert that stock
into paid up shares in any denomination;
|
| (c) |
subdivide its existing shares, or any of them, into shares of smaller amount
than is fixed by the memorandum of association subject, nevertheless, to section
68(1)(d) of the Act: or
|
| (d) |
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 and reduce the amount of its authorised
share capital by the amount of the shares so cancelled.
|
| 36. |
Subject to article 37, the Company may by Special Resolution reduce its share capital, any
capital redemption reserve fund or any share premium account in any manner and with and
subject to any incident authorised, and consent required, by law.
|
| 37. |
The Company shall not increase, reduce or alter its share capital, if such action, in the
Board’s sole and absolute discretion, would cause a non-
de minimis
adverse tax, legal or
regulatory consequence to the Company, any of its subsidiaries or any direct or indirect
shareholder or its Affiliates.
|
| 38. |
Whenever as a result of an alteration or reorganisation of the share capital of the Company
any members would become entitled to fractions of a share, the Directors may, on behalf of
those members, sell the shares representing the fractions for the best price reasonably
obtainable to any person and distribute the net proceeds of sale (after deduction of, without
limitation, brokerage commissions and other sale expenses)in due proportion among those
members, and the Directors may authorise any person to execute an instrument of transfer of
the shares to, or in accordance with the directions of, the purchaser. The transferee shall
not be bound to see to the application of the purchase money nor shall his title to the shares
be affected by any irregularity in or invalidity of the proceedings in reference to the sale.
|
| 39. |
For the purpose of determining those members that are entitled to receive notice of, attend
or vote at any general meeting or any adjournment thereof, or those members that are entitled
to receive payment of any dividend, or in order to make a determination as to who is a member
for any other purpose, the Board may provide that the Register shall be closed for transfers
for a stated period, which period shall not exceed in any case thirty (30) days in each year.
If the Register shall be so closed for the purpose of determining those members that are
entitled to receive notice of, attend or vote at any general meeting the Register shall be so
closed for at least ten (10) days immediately preceding such meeting and the record date for
such determination shall be the date of the closure of the Register.
|
| 40. |
In lieu of or apart from closing the Register, (a) the Board may fix in advance a date as the
record date for any such determination of those members that are entitled to receive notice
of, attend or vote at a meeting of the members and (b) for the purpose of determining those
members that are entitled to receive payment of any dividend the Board may, at or within
ninety (90) days prior to the date of declaration of such dividend fix a subsequent date as
the record date for such determination.
|
| 41. |
If the Register is not so closed and no record date is fixed for the determination of those
members entitled to receive notice of, attend or vote at a general meeting or those members
that are entitled to receive payment of a dividend, the tenth (10
th
) day following
the date on which notice of the meeting is posted or the date on which the resolution of the
Board declaring such dividend is adopted, as the case may be, shall be the record date for
such determination of members. When a determination of those members that are entitled to
receive notice of, attend or vote at a general meeting has been made as provided in these
articles, such determination shall apply to any adjournment thereof.
|
| 42. |
All general meetings other than annual general meetings shall be called extraordinary general
meetings.
|
| (a) |
The Company shall in each year hold a general meeting as its annual general
meeting in addition to any other meeting in that year, and shall specify the meeting as
such in
notices calling it. Not more than fifteen months shall elapse between the date of
one annual general meeting of the Company and that of the next. Subject to section
140 of the Act, all general meetings of the Company may be held outside Ireland.
|
| (b) |
The Board may whenever it thinks fit convene an extraordinary general meeting.
|
| (c) |
Extraordinary general meetings shall also be convened on such requisition, or
in default by such requisitionists, as provided in section 132 of the Act.
|
| 43. |
All provisions of these articles relating to general meetings of the Company shall,
mutatis
mutandis
, apply to every separate general meeting of the holders of any class of shares in the
capital of the Company, except that the necessary quorum shall be at least one person holding
or representing at least one-third of the voting power of the issued shares of that class.
|
| 44. |
A Director and the auditor shall be entitled, notwithstanding that he is not a member, to
attend and speak at any general meeting and at any separate meeting of the holders of any
class of shares in the Company.
|
| 45. |
The Board may, in its absolute discretion, authorise the Secretary to postpone any general
meeting called in accordance with the provisions of these articles (other than a meeting
requisitioned under article 42(b) of these articles or the postponement of which would be
contrary to the Acts, law or a court order pursuant to the Acts) if the Board considers that,
for any reason, it is impractical or unreasonable to hold the general meeting, provided that
notice of postponement is given to each member before the time for such meeting. Fresh notice
of the date, time and place for the postponed meeting shall be given to each member in
accordance with the provisions of these articles.
|
| (a) |
Subject to the provisions of the Acts allowing a general meeting to be called
by shorter notice, an annual general meeting, and an extraordinary general meeting
called for the passing of a special resolution, shall be called by not less than
twenty-one Clear Days’ notice and all other extraordinary general meetings shall be
called by not less than fourteen Clear Days’ notice.
|
| (b) |
The accidental omission to give notice of a meeting to, or the non-receipt of
notice of a meeting by, any person entitled to receive notice shall not invalidate the
proceedings at the meeting.
|
| (c) |
There shall appear with reasonable prominence in every notice of general
meetings of the Company a statement that a shareholder entitled to attend and vote is
entitled to appoint one or more proxies to attend and vote instead of him and that
proxy need not be a shareholder.
|
| (d) |
In cases where instruments of proxy are sent out in notices, the accidental
omission to send such instrument of proxy to, or non-receipt of such instrument of
proxy by, any person entitled to receive notice shall not invalidate any resolution
passed or any proceeding at that meeting.
|
| 47. |
All business shall be deemed special that is transacted at an extraordinary general meeting,
and also all that is transacted at an annual general meeting, with the exception of declaring
a dividend, the consideration of the accounts, balance sheets and the reports of the Directors
and auditors, the election of Directors, the re-appointment of the retiring auditors and the
fixing of the remuneration of the auditors. No special business shall be transacted at a
general meeting without the consent of all the shareholders entitled to received notice of
that meeting unless notice of such special business has been given in the notice convening
that meeting.
|
| 48. |
No business shall be transacted at any general meeting unless a quorum of shareholders is
present at the time when the meeting proceeds to business. Save as otherwise provided by
these articles, one or more shareholders holding shares having at least a majority of the
votes eligible to be cast at such general meeting, present in person or by proxy, shall be a
quorum. Any meeting duly called at which a quorum is not present shall be adjourned and the
Company shall provide notice pursuant to article 46 in the event that such meeting is to be
reconvened.
|
| 49. |
If the Board wishes to make this facility available to shareholders for a specific or all
general meetings of these Company, a shareholder may participate in any general meeting of the
Company, by means of a telephone, video, electronic or similar communication equipment by way
of which all persons participating in such meeting can communicate with each other
simultaneously and instantaneously and such participation shall be deemed to constitute
presence in person at the meeting.
|
| 50. |
The chairman, if any, of the Board, and, if the chairman is not present, the vice chairman or
such other officer or person as the Board shall designate, shall preside as chairman at every
general meeting of the Company.
|
| 51. |
The chairman may, with the consent of a majority of the members, adjourn a general meeting
from time to time (and shall if so directed) and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left unfinished at the meeting
from which the adjournment took place. When a meeting is adjourned for fourteen (14) days or
more, notice of the adjourned meeting shall be given as in the case of an original meeting.
Save as aforesaid it shall not be necessary to give any notice of an adjournment or of the
business to be transacted at an adjourned meeting.
|
| 52. |
At any general meeting a resolution put to the vote of the meeting shall be decided on a poll
which shall be taken in such manner as the chairman directs.
|
| 53. |
In the case of an equality of votes, the chairman of the meeting shall be entitled to a
second or casting vote.
|
| 54. |
If authorised by the Board, any vote taken by written ballot may be satisfied by a ballot
submitted by electronic transmission; provided that any such electronic transmission must
either set forth or be submitted with information from which it can be determined that the
electronic transmission was authorised by the shareholder or proxy.
|
| 55. |
The Board may, and at any general meeting, the chairman of such meeting may make any
arrangement and impose any requirement or restriction it or he considers appropriate to ensure
the security of a general meeting including, without limitation, requirements for evidence of
identity to be produced by those attending the meeting, the searching of their personal
property and the restriction of items that may be taken into the meeting place. The Board
and, at any general meeting, the chairman of such meeting are entitled to refuse entry to a
person who refuses to comply with such arrangements, requirements or restrictions.
|
| 56. |
Subject to any rights and restrictions for the time being attached to any class or classes of
shares and the provisions of article 4, every member present in person and every person
representing a member by proxy at any general meeting shall have such number of votes with
respect to such shares that such holder or the person represented by proxy holds is entitled
by the terms of issue of such shares.
|
| 57. |
In the case of joint holders of shares, the vote of the senior holder that tenders a vote
whether in person or by proxy shall be accepted to the exclusion of the votes of the joint
holders and for this purpose seniority shall be determined by the order in which the names
stand in the Register.
|
| 58. |
A member of unsound mind, or in respect of whom an order has been made by any court having
jurisdiction (whether in Ireland or elsewhere) in matters concerning mental disorder, may
vote, by his committee, receiver, guardian or other person appointed by that court, and any
such committee, receiver or guardian or other person may vote by proxy on a poll. Evidence to
the satisfaction of the Directors of the authority of the person claiming to exercise the
right to vote shall be received at the Office or at such other address as is specified in
accordance with these articles for the receipt of appointments of proxy, not less than
forty-eight hours before the time appointed for holding the meeting or adjourned meeting at
which the right to vote is to be exercised and in default the right to vote shall not be
exercisable.
|
| 59. |
No objection shall be raised to the qualification of any voter except at the meeting or
adjourned meeting at which the vote objected to is given or tendered, and every vote not
disallowed at such meeting shall be valid for all purposes. Any such objection made in due
time shall be referred to the chairman of the meeting, whose decision shall be final and
conclusive.
|
| 60. |
Votes may be given either personally or by proxy.
|
| (a) |
Every member entitled to attend and vote at a general meeting may appoint a
proxy to attend, speak and vote on his behalf and may appoint more than one proxy to
attend, speak and vote at the same meeting. The appointment of a proxy shall be in any
form which the Directors may approve and, if required by the Company, shall be signed
by or on behalf of the appointer. In relation to written proxies, a body corporate may
sign a form of proxy under its common seal or under the hand of a duly authorised
officer thereof or in such other manner as the Directors may approve. A proxy need not
be a member of the Company. The appointment of a proxy in electronic or other form
shall only be effective in such manner as the Directors may approve.
|
| (b) |
Without limiting the foregoing, the Directors may from time to time permit
appointments of a proxy to be made by means of a telephonic, electronic or internet
communication or facility and may in a similar manner permit supplements to, or
amendments or revocations of, any such telephonic, electronic or internet communication
or facility to be made. The Directors may in addition prescribe the method of
determining the time at which any such telephonic, electronic or Internet communication
or facility is to be treated as received by the Company and in accordance with
procedures approved by the Directors that are reasonably designed to verify that such
instructions have been authorised by such shareholder. The Directors may treat any such
telephonic, electronic or Internet communication or facility which purports to be or is
expressed to be sent on behalf of a holder of a share as sufficient evidence of the
authority of the person sending that instruction to send it on behalf of that holder.
|
| 61. |
Any body corporate or other entity which is a member of the Company may by resolution of its
directors or other governing body authorise such person as it thinks fit to act as its
representative at any meeting of the Company or of any class of members of the Company and the
person so authorised shall be entitled to exercise the same powers on behalf of the
body corporate which he represents as that body corporate could exercise if it were an
individual member of the Company. The Company may require evidence from the body corporate
of the due authorisation of such person to act as the representative of the relevant body
corporate.
|
| 62. |
Receipt by the Company of an appointment of proxy in respect of a meeting shall not preclude
a member from attending and voting at the meeting or at any adjournment thereof. An
appointment proxy shall be valid, unless the contrary is stated therein, as well for any
adjournment of the meeting as for the meeting to which it relates.
|
| (a) |
A vote given in accordance with the terms of an appointment of proxy or a
resolution authorising a representative to act on behalf of a body corporate shall be
valid notwithstanding the death or insanity of the principal, or the revocation of the
appointment of proxy or of the authority under which the proxy was appointed or of the
resolution authorising the representative to act or transfer of the share in respect of
which the proxy was appointed or the authorisation of the representative to act was
given, provided that no intimation in writing (whether in electronic form or otherwise)
of such death, insanity, revocation or transfer shall have been received by the Company
at the Office or administrative headquarters of the Company, at least one hour before
the commencement of the meeting or adjourned meeting at which the appointment of proxy
is used or at which the representative acts provided however, that where such
intimation is given in electronic form it shall have been received by the Company at
least 24 hours (or such lesser time as the Directors may specify) before the
commencement of the meeting.
|
| (b) |
The Directors may send, at the expense of the Company, by post, electronic mail
or otherwise, to the members forms for the appointment of a proxy (with or without
stamped envelopes for their return) for use at any general meeting or at any class
meeting, either in blank or nominating any one or more of the Directors or any other
persons in the alternative.
|
| 64. |
Subject to Section 141 of the Act, a resolution in writing signed by all the members for the
time being entitled to attend and vote on such resolution at a general meeting (or being body
corporates by their duly authorised representatives) shall be as valid and effective for all
purposes as if the resolution has been passed at a general meeting of the Company duly
convened and held, and may consist of several documents in like form signed by one or more
persons, and if described as a special resolution, shall be deemed to be special resolution
within the meaning of the Act. Any such resolution shall be served on the Company.
|
| 65. |
At every annual general meeting of the Company, all of the Directors shall retire from office
unless re-elected by ordinary resolution at the annual general meeting. A Director retiring at
a meeting shall retain office until the close or adjournment of the meeting.
|
| 66. |
Every Director nominated for re-election by the Board shall be eligible to stand for
re-election at an annual general meeting.
|
| 67. |
The Board may from time to time fix the maximum and minimum number of Directors to be
appointed. Unless such number is fixed as aforesaid, the number of Directors shall be seven.
|
| 68. |
If at every annual general meeting of the Company, the number of Directors is reduced below
the minimum prescribed by the Act due to the failure of any Directors to be re-elected, then
in those circumstances, the two Directors or nominees who receive the highest number of votes
in favour of election shall be elected and shall remain Directors until such time as
additional Directors have been appointed to replace them as Directors. If, at any annual
general meeting of the Company, the number of Directors is reduced below the minimum
prescribed by the Act in any circumstances where one Director is elected, then that Director
shall hold office until the next annual general meeting and the Director or nominee which
(excluding the re-elected Director) receives the highest number of votes in favour of
election shall be elected and shall remain a Director until such time as one or more
additional Directors have been appointed to replace him or her.
|
| 69. |
The remuneration of the Directors shall be determined by the Board.
|
| 70. |
There shall be no shareholding qualification for Directors.
|
| 71. |
The Company may, by ordinary resolution, of which extended notice has been given in
accordance with section 142 of the Act, remove any Director before the expiration of his
period of office notwithstanding anything in these regulations or in any agreement between the
Company and such Director. Such removal shall be without prejudice to any claim such Director
may have for damages for breach of any contract of service between him and the Company.
|
| 72. |
The Company may, by ordinary resolution, appoint another person in place of a Director
removed from office under article 71 and without prejudice to the powers of the Directors
under article 99 the Company in general meeting by ordinary resolution may appoint any person
to be a Director either to fill a casual vacancy or as an additional Director, subject to the
maximum number of Directors set out in article 67.
|
| 73. |
The Directors may appoint a person who is willing to act to be a Director, either to fill a
vacancy or as an additional Director, provided that the appointment does not cause the number
of Directors to exceed any number fixed by or in accordance with these articles as the maximum
number of Directors. A Director so appointed shall hold office only until the next following
annual general meeting. If not re-appointed at such annual general meeting, such Director
shall vacate office at the conclusion thereof.
|
| 74. |
For so long as Fox Paine (and any of their successors) beneficially hold in aggregate, shares
representing twenty five percent (25%) or more of the voting power of the then issued shares,
the FPC Shareholders (as defined below) shall be entitled to:
|
| 74.1 |
appoint a number of Directors to the Board (“
FPC Directors
”) equal in aggregate
to the pro rata percentage of the voting shares beneficially held by Fox Paine (and any
of their successors) (for example, where Fox Paine (and any of their successors)
beneficially hold in aggregate shares representing forty percent (40%) of the voting
power of the then issued shares, the FPC shareholders shall be entitled to appoint
forty percent (40%) of the number of Directors), and where applicable, rounded up to
nearest whole number of Directors represented by the pro-rata percentage of voting
shares (for example, if holding 40% of the voting power of the then issued shares and
the number of Directors on the Board is seven (7), the FPC Shareholders shall be
entitled to appoint three (3) FPC Directors), provided however the Board shall contain
a sufficient number of “independent directors’ (within the meaning of Rule 5602(a)(2)
of the Nasdaq Rules) such that the Board complies with Rule 5605(b) of the Nasdaq
Rules; and
|
| 74.2 |
remove any of the FPC Directors by delivery of a written notice to the Company
at its registered office.
|
| 75. |
Where a FPC Director is removed pursuant to article 74.2, the FPC Shareholders may, within
such notice or in subsequent written notice, and provided that Fox Paine (and any of their
successors) beneficially hold in aggregate the necessary percentage of voting power in respect
of the then issued shares at that time to be permitted to appoint another FPC Director in
accordance with article 74.1, appoint a new FPC Director to fill such vacancy for the
remainder of the removed FPC Director’s term and the Board shall take, and cause the company
to take any and all necessary actions to effectuate such appointment, including for the
avoidance of doubt, providing all notices to shareholders as may be required pursuant to any
obligations of the Company under applicable law.
|
| 76. |
The Directors may exercise all the powers of the Company to borrow or raise money, and to
mortgage or charge its undertaking, property, assets and uncalled capital or any part thereof
and to issue debentures, debenture stock, notes and other securities whether outright or as
collateral security for any debt, liability or obligation of the Company or of any third
party, without any limitation as to amount.
|
| 77. |
The business of the Company shall be managed by the Directors, who may pay all expenses
incurred in promoting and registering the Company and may exercise all such powers of the
Company as are not, by the Acts or by these articles, required to be exercised by the Company
in general meeting, subject, nevertheless, to any of these articles and to the provisions of
the Acts. No resolution made by the Company in general meeting shall invalidate any prior act
of the Directors that would have been valid if that resolution had not been made.
|
| 78. |
The Directors may from time to time and at any time by power of attorney appoint any company,
firm or person or body of persons, whether nominated directly or indirectly by the Directors,
to be the attorney or attorneys of the Company for such purposes and with such powers,
authorities and discretions (not exceeding those vested in or exercisable by the Directors
under these articles) and for such period and subject to such conditions as they may think
fit, and any such power of attorney may contain such provisions for the protection of persons
dealing with any such attorney as the Directors may think fit, and may also authorise any such
attorney to delegate all or any of the powers, authorities and discretions vested in him.
|
| 79. |
The Board shall have the power to appoint and remove executives in such terms as the Board
sees fit and to give such titles and responsibilities to those executives as it sees fit.
|
| 80. |
The Company may exercise the powers conferred by Section 41 of the Act with regard to having
an official seal for use abroad and such powers shall be vested in the Directors.
|
| 81. |
Subject as otherwise provided with these articles and, in particular, articles 131 and 132,
the Directors may exercise the voting powers conferred by shares of any other company held or
owned by the Company in such manner in all respects as they think fit and in particular they
may exercise their voting powers in favour of any resolution appointing the Directors or any
of them as Directors or officers of such other company or providing for the payment of
remuneration or pensions to the Directors or officers of such other company.
|
| 82. |
All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and
all receipts for money paid to the Company shall be signed, drawn, accepted, endorsed or
otherwise executed, as the case may be, by such person or persons and in such manner as the
Directors shall from time to time by resolution determine.
|
| 83. |
The Directors may from time to time authorise such person or persons as they see fit to
perform all acts, including without prejudice to the foregoing, to effect a transfer of any
shares, bonds, or other evidences of indebtedness or obligations, subscription rights,
warrants, and other securities in another body corporate in which the Company holds an
interest and to issue the necessary powers of attorney for the same; and each such person is
authorised on behalf of the Company to vote such securities, to appoint proxies with respect
thereto, and to execute consents, waivers and releases with respect thereto, or to cause any
such action to be taken.
|
| 84. |
The Directors may procure the establishment and maintenance of or participate in, or
contribute to any non-contributory or contributory pension or superannuation fund, scheme or
arrangement or life assurance scheme or arrangement for the benefit of, and pay, provide for
or procure the grant of donations, gratuities, pensions, allowances, benefits or emoluments to
any persons (including Directors or other officers) who are or shall have been at any time in
the employment or service of the Company or of any company which is or was a subsidiary of the
Company or of the predecessor in business of the Company or any such subsidiary or holding
Company and the wives, widows, families, relatives or dependants of any such persons. The
Directors may also procure the establishment and subsidy of or subscription to and support of
any institutions, associations, clubs, funds or trusts calculated to be for the benefit of any
such persons as aforesaid or otherwise to advance the interests and well being of the Company
or of any such other Company as aforesaid or its members, and payments for or towards the
issuance of any such persons as aforesaid and subscriptions or guarantees of money for
charitable or benevolent objects or for any exhibition or for any public, general or useful
object. Provided that any Director shall be entitled to retain any benefit received by him
under this article, subject only, where the Acts require, to disclosure to the members and the
approval of the Company in general meeting.
|
| 85. |
The Board may from time to time provide for the management of the affairs of the Company in
such manner as it shall think fit and the specific delegation provisions contained in the
articles shall not limit the general powers conferred by these articles.
|
| 86. |
The office of a Director shall be vacated
ipso facto
if the Director:
|
| (i) |
is restricted or disqualified to act as a Director under the
provisions of Part VII of the 1990 Act: or
|
| (ii) |
resigns his office by notice in writing to the Company or in
writing offers to resign and the Directors resolve to accept such offer; or
|
| (iii) |
is or becomes bankrupt or makes any arrangement or composition
with his or her creditors generally; or
|
| (iv) |
is or becomes of unsound mind or dies; or
|
| (v) |
is removed from office under article 71 or article 74.2.
|
| 87. |
The Directors may meet together for the despatch of business, adjourn and otherwise regulate
their meetings and proceedings as they shall think fit. Unless a greater number is expressly
required by law or these articles, questions arising at any meeting shall be decided by a
majority of votes cast thereat. In case of an equality of votes the chairman shall have a
second or casting vote. The chairman may, and a Secretary on the requisition of a majority of
the Directors shall, at any time summon a meeting of the Board by reasonable notice in writing
to every Director, which notice shall set forth the place, date and hour and the general
nature of the business to be considered unless notice is waived by all the Directors either
at, before or after the meeting is held. No additional notice of a regularly scheduled
meeting of the Board shall be required. Notice of any special meeting of the Board shall be
given by the Secretary of the Company at least one day prior to such meeting. Such notice
requirements shall be waived by any Director actually attending such meeting.
|
| 88. |
Without prejudice to the powers conferred by these articles, the Board may delegate any of
its powers to committees consisting of such Director or Directors as it thinks fit. Any
committee so formed shall, in the exercise of the powers so delegated, conform to any
regulations or charter that may be imposed on it by the Board.
|
| 89. |
The meetings and proceedings of any such committee consisting of two or more Directors shall
be governed by the provisions of these Articles regulating the meetings and proceedings of the
Board so far as the same are applicable and are not superseded by any regulations or charter
made by the Board under article 88.
|
| 90. |
All acts done by any meeting of the Board, or of a committee of the Board or by any person
acting as a Director, shall, notwithstanding it be afterwards discovered that there was some
defect in the appointment of any such Director or person acting as aforesaid, or that they or
any of them were disqualified, or had vacated office, or were not entitled to vote, be as
valid as if every such person had been duly appointed, and was qualified and had continued to
be a Director and had been entitled to vote.
|
| 91. |
A Director or Directors may participate in any meeting of the Board, or of any committee
appointed by the Board of which such Director or Directors are members, by means of telephone,
video conferencing or similar communication equipment by way of which all persons
participating in such meeting can hear each other and such participation shall be deemed to
constitute presence in person at the meeting.
|
| 92. |
The quorum necessary for the transaction of the business of the Board may be fixed by the
Board, and unless so fixed, shall be a majority of the Directors.
|
| 93. |
A Director who is in any way, whether directly or indirectly, interested in a contract,
transaction, appointment or arrangement or proposed contract, transaction, appointment or
arrangement with the Company shall declare the nature of his interest at a meeting of the
Board in accordance with Section 194 of the Act. A general notice given to the Board by any
Director to the effect that he is a shareholder of any specified company or firm and is to be
regarded as interested in any contract that may thereafter be made with that company or firm
shall be deemed a sufficient declaration of interest in regard to any contract so made. A
Director may vote in respect of any contract or proposed contract or arrangement
notwithstanding that he may be interested therein and if he does so his vote shall be
counted and he may be counted in the quorum at any meeting of the Board at which any such
contract or proposed contract or arrangement shall come before the meeting for
consideration.
|
| 94. |
A Director may hold and be remunerated in respect of any other office or place of profit
under the Company or any other Company in which the Company may be interested (other than the
office of auditor of the Company or any subsidiary thereof) in conjunction with his office of
Director for such period and on such terms as to the remuneration and otherwise as the
Directors may determine, and no Director or intending Director shall be disqualified from his
office from contracting or being interested, directly or indirectly, in any contract or
arrangement with the Company or any other Company with regard to his tenure of any such other
office or place of profit or as a vendor, purchaser or otherwise nor shall any Director so
contracting or being so interested be liable to account to the Company for any profits and
advantages accruing to him from any such contract or arrangement by reason of such Director
holding that office or of the fiduciary relationship thereby established.
|
| 95. |
A Director may hold any other office or place of profit under the Company (other than the
office of auditor) in conjunction with his office of Director for such period and on such
terms (as to remuneration and otherwise) as the Board may determine and no Director or
proposed Director shall be disqualified by his office from contracting with the Company either
with regard to his tenure of any such other office or place of profit or as vendor, purchaser
or otherwise, nor shall any such contract or arrangement entered into by or on behalf of the
Company in which any Director is in any way interested, be liable to be avoided, nor shall any
Director so contracting or being so interested be liable to account to the Company for any
profit realised by any such contract or arrangement by reason of such Director holding that
office or of the fiduciary relation thereby established. A Director, notwithstanding his
interest, may be counted in the quorum present at any meeting of the Board whereat he or any
other Director is appointed to hold any such office or place of profit under the Company or
whereat the terms of any such appointment are arranged and he may vote on any such appointment
or arrangement.
|
| 96. |
Any Director may act by himself or his firm in a professional capacity for the Company, and
he or his firm shall be entitled to remuneration for professional services as if he were not a
Director; provided that nothing herein contained shall authorise a Director or his firm to act
as auditor to the Company.
|
| 97. |
The Board shall cause minutes to be made in books or loose-leaf folders provided for the
purpose of recording:
|
| (a) |
all appointments of officers made by the Board;
|
| (b) |
the names of the Directors present at each meeting of the Board and of any
committee of the Board; and
|
| (c) |
all resolutions and proceedings at all meetings of the Company, and of the
Board and of committees of Directors.
|
| 98. |
When the chairman of a meeting of the Board signs the minutes of such meeting those minutes
shall be deemed to have been duly held notwithstanding that all the Directors have not
actually come together or that there may have been a technical defect in the proceedings.
|
| 99. |
A resolution signed (whether by electronic signature or otherwise as approved by the
Directors) by all the Directors shall be as valid and effectual as if it had been passed at a
meeting of the Board or, as appropriate, a committee duly called and constituted. When
signed a resolution may consist of several documents each signed by one or more of the
Directors.
|
| 100. |
The continuing Directors may act notwithstanding any vacancy in their body but if and so long
as their number is reduced below the number fixed by or pursuant to these Articles as the
necessary quorum of Directors, the continuing Directors shall appoint forthwith an additional
Director or additional Directors to make up such number or shall convene a general meeting of
the Company for the purpose of making such appointment, but for no other purpose.
|
| 101. |
The Board may elect a chairman and one or more vice chairmen of their meetings and determine
the period for which he is to hold office but if no such chairman or vice chairman are
elected, or if at any meeting the chairman or any vice chairman is not present within fifteen
minutes after the time appointed for holding the meeting, the Directors present may choose one
of their number to be chairman of the meeting.
|
| 102. |
A committee appointed by the Board may elect a chairman of its meetings. If no such chairman
is elected, or if at any meeting the chairman is not present within five minutes after the
time appointed for holding the meeting, the Directors present may choose one of their number
to be chairman of the meeting.
|
| 103. |
A committee appointed by the Board may meet and adjourn as it thinks proper. A quorum for any
meeting of a committee shall consist of at least 50% of the members in office at the time and
questions arising at any meeting shall be determined by a majority of votes of the committee
members present. In the case of an equality of votes, the chairman of the committee meeting
shall be entitled to a second or casting vote.
|
| 104. |
The Board may appoint any one or more persons to act as service providers to the Company
(including, without limitation, to act as manager, administrator, registrar and transfer
agent, custodian, investment manager, investment adviser, underwriter, placement agent and/or
sponsor to the Company) and the Board may entrust to and confer upon such persons such powers
upon such terms and conditions, including the right to remuneration payable by, and
indemnification from, the Company and with such restrictions and with such powers of
delegation as they may determine.
|
| (a) |
The Directors shall ensure that the Seal (including any official securities
seal kept pursuant to the Acts) shall be used only by the authority of the Directors or
of a committee authorised by the Directors and every instrument to which the Seal shall
be affixed shall be signed by a Director or the Secretary or any assistant Secretary or
some other person authorised by the Board, either generally or specifically, for that
purpose.
|
| (b) |
The Company may exercise the powers conferred by the Acts with regard to having
an official seal for use abroad and such powers shall be vested in the Directors.
|
| 106. |
The Company in general meeting may declare dividends, but no dividends shall exceed the
amount recommended by the Directors.
|
| 107. |
The Directors may from time to time declare and pay to the members such interim dividends as
appear to the Directors to be justified by the profits of the Company.
|
| 108. |
No dividend or interim dividend shall be declared and paid otherwise than in accordance with
the provisions of Part IV of the 1983 Act.
|
| 109. |
The Directors may, before recommending any dividend, set aside out of the profits of the
Company or funds legally available for distribution such sums as they think proper as a
reserve or reserves which shall, at the discretion of the Directors, be applicable for any
purpose to which the profits of the Company may be properly applied and pending such
application may at the like discretion either be employed in the business of the Company or be
invested in such investments as the Directors may in their sole and absolute discretion
lawfully determine. The Directors may also, without placing the same to reserve, carry forward
any profits which they may in their sole and absolute discretion think it prudent not to
divide.
|
| 110. |
Subject to the rights of persons, if any, entitled to shares with special rights as to
dividend, all dividends shall be declared and paid according to the amounts paid or credited
as paid on the shares in respect whereof the dividend is paid. 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.
|
| 111. |
The Directors may deduct from any dividend payable to any member all sums of money (if any)
immediately payable by him to the Company in relation to the shares of the Company.
|
| 112. |
The Directors when paying dividends to shareholders in accordance with the provisions of
these articles may make such payment either in cash or
in specie
.
|
| 113. |
Any dividend or other monies payable in respect of any share may be paid by cheque or warrant
sent by post (or sent by any electronic or other means), at the risk of the person or persons
entitled thereto, to the registered address of the holder or, where there are joint holders,
to the registered address of that one of the joint holders who is first named on the Register
or to such person and to such address as the holder or joint holders may in writing direct.
Every such cheque or warrant shall be made payable to the order of the person to whom it is
sent and payment of the cheque or warrant shall be a good discharge to the Company. Any joint
holder or other person jointly entitled to a share as aforesaid may give receipts for any
dividend or other moneys payable in respect of the share. Any such dividend or other
distribution may also be paid by any other method (including payment in a currency other than
US$, electronic funds transfer, direct debit, bank transfer or by means of a relevant system)
which the Directors consider appropriate and any member who elects for such method of payment
shall be deemed to have accepted all of the risks inherent therein. The debiting of the
Company’s account in respect of the relevant amount shall be evidence of good discharge of the
Company’s obligations in respect of any payment made by any such methods.
|
| 115. |
If the Directors so resolve, any dividend which has remained unclaimed for twelve years from
the date of its declaration shall be forfeited and cease to remain owing by the Company. The
payment by the Directors of any unclaimed dividend or other moneys payable in respect of a
share into a separate account shall not constitute the Company a trustee in respect thereof.
|
| (a) |
The Directors shall cause to be kept proper books of account, whether in the
form of documents, electronic form or otherwise, that:
|
| (i) |
correctly record and explain the transactions of the Company;
|
| (ii) |
will at any time enable the financial position of the Company
to be determined with reasonable accuracy;
|
| (iii) |
will enable the Directors to ensure that any balance sheet,
profit and loss account or income and expenditure account of the Company
complies with the requirements of the Acts; and
|
| (iv) |
will enable the accounts of the Company to be readily and properly audited.
|
| (b) |
The books of account shall be kept at the Office or, subject to the provisions of
the Acts, at such other place as the Directors think fit and shall be open at all
reasonable times to the inspection of the Directors.
|
| (c) |
In accordance with the provisions of the Acts, the Directors shall cause to be
prepared and to be laid before the annual general meeting of the Company from time to
time such profit and loss accounts, balance sheets, group accounts and reports as are
required by the Acts to be prepared and laid before such meeting.
|
| (d) |
If required, a copy of every balance sheet (including every document required by
law to be annexed thereto) which is to be laid before the annual general meeting of the
Company together with a copy of the Directors’ report and Auditors’ report shall be sent
by post, electronic mail or any other means of communication (electronic or otherwise),
not less than twenty-one Clear Days before the date of the annual general meeting, to
every person entitled under the provisions of the Acts to receive them; provided that in
the case of those documents sent by electronic mail or any other means of electronic
communication, such documents shall be sent with the consent of the recipient, to the
address of the recipient notified to the Company by the recipient for such purposes.
|
| 117. |
Without prejudice to any powers conferred on the Directors as aforesaid, and subject to the
Directors’ authority to issue and allot shares under articles 17(c) and 17(d), the Directors
may:
|
| (a) |
resolve to capitalise an amount standing to the credit of reserves (including
a share premium account, capital redemption reserve and profit and loss account),
whether or not available for distribution;
|
| (b) |
appropriate the sum resolved to be capitalised to the shareholders in
proportion to the nominal amount of shares held by them respectively and apply that
sum on their behalf in or towards paying up in full unissued shares or debentures of a
nominal amount equal to that sum, and allot the shares or debentures, credited as
fully paid, to the shareholders (or as the Board of may direct) in those proportions,
or partly in one way and partly in the other, but the share premium account, the
capital redemption reserve and profits that are not available for distribution may,
for the purposes of this article 116, only be applied in paying up unissued shares to
be allotted to shareholders credited as fully paid;
|
| (c) |
make any arrangements it thinks fit to resolve a difficulty arising in the
distribution of a capitalised reserve and in particular, without limitation, where
shares or debentures become distributable in fractions the Board may deal with the
fractions as it thinks fit;
|
| (d) |
authorise a person to enter (on behalf of all the shareholders concerned)
into an agreement with the Company providing for the allotment to the shareholders
respectively, credited as fully paid, of shares or debentures to which they may be
entitled on the capitalisation and any such agreement made under this authority being
effective and binding on all those shareholders; and
|
| (e) |
generally do all acts and things required to give effect to the resolution.
|
| 118. |
Auditors shall be appointed and their duties regulated in accordance with sections 160 to 163
of the Act or any statutory amendment thereof.
|
| 119. |
Any notice to be given, served, sent or delivered pursuant to these articles shall be in
writing (whether in electronic form or otherwise but only if the use of such electronic or
other communication conforms with relevant legislation and provided further that the
electronic means or electronic form has been approved by the Directors).
|
| 120. |
Any notice or document may be served by the Company or by the person entitled to give notice
to any shareholder either personally, by facsimile, email or other electronic means or by
sending it through the post in a prepaid letter or via a recognised courier service, fees
prepaid, addressed to the shareholder at his address as appearing in the Register, or by
sending with the consent of the holder to the extent required by law, the same by means of
electronic mail or other means of electronic communication approved by the Directors, to the
address of the holder notified to the Company by the holder for that purpose (or if not so
notified, then to the address of the member last known to the Company). In the case of joint
holders of a share, all notices shall be given to that one of the joint holders whose name
stands first in the Register in respect of the joint holding, and notice so given shall be
sufficient notice to all the joint holders.
|
| 121. |
Any shareholder present, either personally or by proxy, at any meeting of the Company shall
for all purposes be deemed to have received due notice of such meeting and, where requisite,
of the purposes for which such meeting was convened.
|
| 122. |
Any notice or other document, if served by (a) post, shall be deemed to have been served five
(5) days after the time when the letter containing the same is posted, or, (b) facsimile,
email or other electronic means shall be deemed to have been served upon production of a
report confirming transmission to the recipient or (c) recognised courier service, shall be
deemed to have been served 48 hours after the time when the letter containing the same is
delivered to
the courier service. In proving service by post or courier service it shall be sufficient
to prove that the letter containing the notice or documents was properly addressed and duly
posted or delivered to the courier service.
|
| 123. |
Any notice or document delivered or sent by post to or left at the registered address of any
shareholder in accordance with the terms of these articles shall notwithstanding that such
shareholder be then dead or bankrupt, and whether or not the Company has notice of his death
or bankruptcy, be deemed to have been duly served in respect of any share registered in the
name of such shareholder as sole or joint holder, unless his name shall at the time of the
service of the notice or document, have been removed from the Register as the holder of the
share, and such service shall for all purposes be deemed a sufficient service of such notice
or document on all persons interested (whether jointly with or as claiming through or under
him) in the share.
|
| 124. |
Notice of every general meeting of the Company shall be given to:
|
| (a) |
all shareholders holding shares with the right to receive notice and who have
supplied to the Company an address for the giving of notices to them; and
|
| (b) |
every person entitled to a share in consequence of the death or bankruptcy of a
shareholder, who but for his death or bankruptcy would be entitled to receive notice of
the meeting.
|
| 125. |
Subject to applicable law, no other person shall be entitled to receive notices of general
meetings.
|
| 126. |
Notwithstanding anything contained in the articles, the Company shall not be obliged to take
account of or make any investigations as to the existence of any suspension or curtailment of
postal services within or in relation to all or any part of any jurisdiction or other area
other than Ireland.
|
| 127. |
Any requirement in these articles for the consent of a member in regard to the receipt by
such member of electronic mail or other means of electronic communications approved by the
Directors, including the receipt of the Company’s audited accounts and the Directors’ and
auditor’s reports thereon, shall be deemed to have been satisfied where the Company has
written to the member informing him/her of its intention to use electronic communications for
such purposes and the member has not, within four weeks of the issue of such notice, served an
objection in writing on the Company to such proposal. Where a member has given, or is deemed
to have given, his/her consent to the receipt by such member of electronic mail or other means
of electronic communications approved by the Directors, he/she may revoke such consent at any
time by requesting the Company to communicate with him/her in documented form provided however
that such revocation shall not take effect until five days after written notice of the
revocation is received by the Company.
|
| 128. |
If at any time by reason of the suspension or curtailment of postal services in any
territory, the Company is unable effectively to convene a general meeting by notices sent
through the post, a general meeting may be convened by a public announcement and such notice
shall be deemed to have been duly served on all members entitled thereto at noon on the day on
which the said public announcement is made. In any such case the Company shall put a full copy
of the notice of the general meeting on its website. For purposes of this sub-paragraph (i),
“public announcement” shall mean disclosure in a press release reported by a national news
service or in a document publicly filed by the Company with the U.S. Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and
regulations promulgated thereunder.
|
| 129. |
Every person who becomes entitled to a share shall before his name is entered in the Register
in respect of the share, be bound by any notice in respect of that share which has been duly
given to a person from whom he derives his title.
|
| 130. |
The signature (whether electronic signature, an advanced electronic signature or otherwise)
to any notice to be given by the Company may be written (in electronic form or otherwise) or
printed.
|
| 131. |
Notwithstanding any other provision of these articles to the contrary, if the Company is
required or entitled to vote at a general meeting of any direct subsidiary of the Company that
is organised under the laws of a jurisdiction outside the United States of America, the
Directors shall refer the subject matter of the vote to the shareholders of the Company at a
general meeting (subject to article 4) and seek authority from the shareholders for the
Company’s corporate representative or proxy to vote in favour of the resolution proposed by
the subsidiary, unless the subsidiary is or has elected to be disregarded from its owner for
United States federal income tax purposes and does not own, directly or indirectly, any
subsidiary organised under the laws of a jurisdiction outside the United States of America
that is treated as a corporation for United States federal income tax purposes (each such
non-United States subsidiary that is not disregarded, or that is disregarded but owns,
directly or indirectly, a non-United States subsidiary that is treated as a corporation for
such purposes, a
“Non-U.S. Regarded Subsidiary”
). The Directors shall cause the Company’s
corporate representative or proxy to vote the Company’s shares in the Non-U.S. Regarded
Subsidiary
pro rata
to the votes received at the general meeting of the Company, with votes
for or against the directing resolution being taken, respectively, as an instruction for the
Company’s corporate representative or proxy to vote the appropriate proportion of its shares
for and the appropriate proportion of its shares against the resolution proposed by the Non-U
S. Regarded Subsidiary, provided, however, that the foregoing shall not apply to any subject
matter regarding a U.S. indirect subsidiary of the Company that is required to be voted on by
a Non-U.S. Regarded Subsidiary of the Company as the shareholder of such U.S. subsidiary, and
shall apply to a vote of the Company as shareholder of a disregarded subsidiary that directly
or indirectly owns non-United States subsidiaries treated as corporations for United States
federal income tax purposes only if the subject matter of such vote pertains to such
non-United States subsidiaries treated as corporations.
|
| 132. |
Notwithstanding article 131, the Directors in their sole and absolute discretion shall
require that the bye-laws or articles of association, or similar organisational documents, of
each Non-U.S. Regarded Subsidiary, whether currently in existence or organised following the
date hereof, shall contain provisions substantially similar to articles 131 and 132. The
Company shall enter into agreements with each such Non-U.S. Regarded Subsidiary, as reasonably
necessary, to effectuate or implement this article 132.
|
| 133. |
If the Company shall be wound up and the assets available for distribution among the members
as such shall be insufficient to repay the whole of the paid up or credited as paid up share
capital, such assets shall be distributed so that, as nearly as may be, the losses shall be
borne by the members in proportion to the capital paid up or credited as paid up at the
commencement of the winding up on the shares held by them respectively. And if in a winding up
the assets available for distribution among the members shall be more than sufficient to repay
the whole of the share capital paid up or credited as paid up at the commencement of the
winding up, the excess shall be distributed among the members in proportion to the capital at
the commencement of the winding up paid up or credited as paid
up on the said shares held by them respectively. Notwithstanding the foregoing, this article
shall not affect the rights of the holders of shares issued upon special terms and
conditions.
|
| (a) |
In case of a sale by the liquidator under Section 260 of the Act, the
liquidator may by the contract of sale agree so as to bind all the members for the
allotment to the members directly of the proceeds of sale in proportion to their
respective interests in the Company and may further by the contract limit a time at
the expiration of which obligations or shares not accepted or required to be sold
shall be deemed to have been irrevocably refused and be at the disposal of the
Company, but so that nothing herein contained shall be taken to diminish, prejudice or
affect the rights of dissenting members conferred by the said Section.
|
| (b) |
The power of sale of the liquidator shall include a power to sell wholly or
partially for debentures, debenture stock, or other obligations of another company,
either then already constituted or about to be constituted for the purpose of carrying
out the sale.
|
| 135. |
If the Company is wound up, the liquidator, with the sanction of a Special Resolution and any
other sanction required by the Acts, may divide among the members
in specie
or kind the whole
or any part of the assets of the Company (whether they shall consist of property of the same
kind or not), and, for such purpose, may value any assets and determine how the division shall
be carried out as between the members or different classes of members. 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, with the like sanction, he determines, but so that
no member shall be compelled to accept any assets upon which there is a liability.
|
| (a) |
Subject to the provisions of and so far as may be admitted by the Acts, every
Director and the Secretary of the Company (including his heirs, executors and
administrators) shall be entitled to be indemnified by the Company against all costs,
charges, losses, expenses and liabilities incurred by him in the execution and
discharge of his duties or in relation thereto including any liability incurred by him
in defending any proceedings, civil or criminal, which relate to anything done or
omitted or alleged to have been done or omitted by him as an officer or employee of the
Company and in which judgement is given in his favour (or the proceedings are otherwise
disposed of without any finding or admission of any material breach of duty on his
part) or in which he is acquitted or in connection with any application under any
statute for relief from liability in respect of any such act or omission in which
relief is granted to him by the Court.
|
| (b) |
The Company shall indemnify, except in respect of wilful default or fraud, to
the full extent now or hereafter permitted by law, any person (including his heirs,
executors and administrators) who is or was a current or former executive of the
Company (other than any Directors or Secretary), any person, (including his heirs,
executors and administrators) who is or was a current or former executive of a wholly
owned subsidiary of the Company, or any person who is serving or has served for, on
behalf of, or at the request of the Company, as a director, officer, employee or agent
of another company, partnership, joint venture, trust or other enterprise, in each
case, other than a wholly owned subsidiary of the Company, or in a fiduciary or other
capacity with respect to any employee benefit plan maintained by the Company, who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (including, without limitation, an action by or in the right of the
Company), against any expense (including attorney’s fees), judgements, fines and
amounts paid in settlement actually and reasonably incurred by such person (or his
heirs, executors and administrators) in respect thereof. The Company shall advance
the expenses of defending any such action, suit or proceeding (including appeals) in
accordance with and to the full extent now or hereafter permitted by law. Without
limiting the generality or the effect of the foregoing to the full extent now or
hereafter permitted by law, the Company may enter into one or more agreements with
any person that provide for indemnification greater or different than that provided
in this article 136. Any amendment or repeal of this article 136 shall not adversely
affect any right or protection existing hereunder immediately prior to such
amendment or repeal. The indemnity in this paragraph (b) shall not extend to any
matter which would render it void pursuant to the Acts.
|
| (c) |
The provisions of these articles shall be applicable to all actions, claims,
suits or proceedings made or commenced after the adoption of these articles, whether
arising from acts or omissions to act occurring before or after such adoption. The
provisions of these articles shall be deemed to be a contract between the Company and
each person described in this article 136 who serves in such capacity at any time while
these articles and the relevant provisions of the law, if any, are in effect, and any
repeal or modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts or any action, suit or proceeding then or
theretofore existing, or any action, suit or proceeding thereafter brought or
threatened based in whole or in part on any such state of facts.
|
| (d) |
If any provision of these articles shall be found to be invalid or limited in
application by reason of any law or regulation, it shall not affect any other
application of such provision or the validity of the remaining provisions of these
articles. The rights of indemnification and advancement of expenses provided in these
articles shall neither be exclusive of, nor be deemed in limitation of, any rights to
which any such person described in this article 136 may otherwise be entitled or
permitted by contract, approved by the Company in general meeting by way of ordinary
resolution action of the Board or otherwise, or as a matter of law, both as to actions
in his official capacity and actions in any other capacity while holding such office,
it being the policy of the Company that indemnification of the specified individuals,
except in respect of wilful default or fraud, shall be made to the fullest extent
permitted by law.
|
| (e) |
The Directors shall have power to purchase and maintain for any Director, the
Secretary or other employees of the Company or any director, officer, employee or agent
of any of its subsidiaries insurance against any such liability as referred to in
Section 200 of the Act or otherwise.
|
| (f) |
The Company may additionally indemnify any employee or agent of the Company or
any director, officer, employee or agent of any of its subsidiaries to the fullest
extent permitted by law.
|
| 137. |
Whenever any law for the time being of any country, state, administrative area or place
imposes or purports to impose any immediate or future or possible liability upon the Company
to make any payment or empowers any government or taxing authority or government official to
require the Company to make any payment in respect of any shares registered in the Register as
held either jointly or solely by any shareholder or in respect of
any dividends, bonuses or other monies due or payable or accruing due or that may become due
or payable to such shareholder by the Company on or in respect of any shares registered as
aforesaid or for or on account of in respect of any shareholder and whether in consequence
of:
|
| (a) |
the death of such shareholder,
|
||
| (b) |
the non-payment of any income tax or other tax by such shareholder,
|
||
| (c) |
the non-payment of any estate, probate, succession, death, stamp, or other duty
by the executor or administrator of such shareholder or by or out of his estate, or
|
| (d) |
any other act or thing, in every such case (except to the extent that the
rights conferred upon holders of any class of shares render the Company liable to make
additional payments in respect of sums withheld on account of the foregoing):
|
| (i) |
the Company shall be fully indemnified by such shareholder or
his executor or administrator from all liability;
|
| (ii) |
the Company shall have a lien upon all dividends and other
monies payable in respect of the shares registered in the Register as held
either jointly or solely by such shareholder for all monies paid or payable by
the Company in respect of such shares or in respect of any dividends or other
monies as aforesaid thereon or for or on account or in respect of such
shareholder under or in consequence of any such law together with interest
thereon (at a rate not exceeding that permissible under applicable law) from
the date of payment to the date of repayment and may deduct or set off against
such dividends or other monies payable as aforesaid any monies paid or payable
by the Company as aforesaid together with interest as aforesaid;
|
| (iii) |
the Company may recover as a debt due from such shareholder,
or his executor or administrator wherever constituted, any monies paid by the
Company under or in consequence of any such law and interest thereon at the
rate and for the period aforesaid in excess of any dividends or other monies as
aforesaid then due or payable by the Company; and
|
| (iv) |
the Company may, if any such money is paid or payable by it
under any such law as aforesaid, refuse to register a transfer of any shares by
any such shareholder or his executor or administrator until such money and
interest as aforesaid is set off or deducted as aforesaid, or in case the same
exceeds the amount of any such dividends or other monies as aforesaid then due
or payable by the Company, until such excess is paid to the Company.
|
| (a) |
The Company shall be entitled to sell at the best price reasonably obtainable any
share or stock of a member or any share or stock to which a person is entitled by
transmission if and provided that:
|
| (i) |
for a period of twelve years (not less than three dividends
having been declared and paid) no cheque or warrant sent by the Company
through the post in a prepaid letter addressed to the member or to the person
entitled by transmission to the share or stock at his address on the Register
or otherwise the last known address given by the member or the person
entitled by transmission to which cheques and warrants are to be sent has
been cashed and no communication has been received by the Company from the
member or the person entitled by transmission;
|
| (ii) |
at the expiration of the said period of twelve years the
Company has given notice by advertisement in a leading Dublin newspaper and a
newspaper circulating in the area in which the address referred to in
paragraph (a) of this article is located of its intention to sell such share
or stock; and
|
| (iii) |
the Company has not during the further period of three
months after the date of the advertisement and prior to the exercise of the
power of sale received any communication from the member or person entitled
by transmission.
|
| 139. |
To give effect to any such sale the Company may appoint any person to execute as transferor
an instrument of transfer of such share or stock and such instrument of transfer shall be as
effective as if it had been executed by the registered holder of or person entitled by
transmission to such share or stock. The Company shall account to the member or other person
entitled to such share or stock for the net proceeds of such sale by carrying all monies in
respect thereof to a separate account which shall be a permanent debt of the Company and the
Company shall be deemed to be a debtor and not a trustee in respect thereof for such member or
other person. Monies carried to such separate account may either be employed in the business
of the Company or invested in such investments (other than shares of the Company or its
holding company if any) as the Directors may from time to time think fit.
|
| 140. |
Subject to the rights attaching to the various classes of shares, the Company may at any time
and from time to time by Special Resolution alter or amend these articles in whole or in part.
|
Names, addresses and descriptions of subscribers
Number of shares taken by each subscriber
For and on behalf of
Thirty Nine Thousand, Nine Hundred and
United America Indemnity, Ltd.,
Ninety Four Ordinary Shares
Walker House,
87 Mary Street,
George Town,
Grand Cayman,
KY1-9002,
Cayman Islands
For and on behalf of
Larry Allen Frakes
One Ordinary Share
1653 Yardley Court
West Chester, Pennsylvania
19380
United States
For and on behalf of
Thomas Michael McGeehan
One Ordinary Share
572 Saratoga Road
King of Prussia
PA 19406
For and on behalf of
Linda Hohn
One Ordinary Share
153 Gulph Hills Road
Radnor
PA 19087
For and on behalf of
Edward M.Rafter
One Ordinary Share
1 Yearling Chase
Mount Laurel
NJ 08054
For and on behalf of
Troy Santora
One Ordinary Share
Woodbourne Place #7
28 Woodbourne Avenue
Pembroke HM08
Bermuda
For and on behalf of
Caroline M. Tate
One Ordinary Share
813 Judie Lane
Ambler, PA 19002
|
Dated the 25
th
day of February 2010
|
||
|
|
||
|
Witness to the above signatures:
|
||
|
Ashley Mayne
|
||
|
Purvis House
|
||
|
Victoria Place
|
||
|
29 Victoria Street
|
||
|
PO Box HM 716
|
||
|
Hamilton HMCX
|
||
|
Bermuda
|
| GLOBAL INDEMNITY (CAYMAN) LIMITED | ||||
|
|
||||
|
|
By: | /s/ Thomas M. McGeehan | ||
|
|
||||
|
|
Name: | Thomas M. McGeehan | ||
|
|
||||
|
|
Title: | Director | ||
|
|
||||
|
By:
|
/s/ Linda C. Hohn | ||||
|
Name:
|
Linda C. Hohn |
|
|||
|
|
|||||
|
Title:
|
Vice President | ||||
|
|
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
|
UNITED AMERICA INDEMNITY, LTD.
|
||||
| By: | /s/ Larry A. Frakes | |||
| Name: | Larry A. Frakes | |||
| Title: | President and Chief Executive Officer | |||
| 1. |
undertake and discharge all of the rights and obligations of the Company (as defined in the
Share Incentive Plan) under the Share Incentive Plan;
|
| 2. |
exercise all of the powers of the Company as provided for in the Share Incentive Plan;
|
| 3. |
be bound by the terms of the Share Incentive Plan so that GI plc will be bound by the
requirements, without limitation, that any outstanding award subject to any Stock Option,
Restricted Stock, Other Stock-Based Award or Award Agreement (as such terms are defined in the
Share Incentive Plan) shall be subject to the same terms and conditions of the Share Incentive
Plan as in effect immediately prior to the effective date of this Deed Poll, save for
such changes as are necessary to effectuate and reflect the assumption by GI plc of the
Share Incentive Plan and the rights and obligations of UAI-Cayman thereunder.
|
| 4. |
GI plc hereby assumes and adopts, for the time being, the form of Award Agreement adopted by
UAI-Cayman for the issuance of Awards on and after July 2, 2010 and the form of Option Agreement
adopted by UAI-Cayman for the issuance of Options on and after July
2, 2010, with such amendments
and modifications thereto as may be necessary or appropriate to effectuate and reflect the
assumption by GI plc of the Stock Incentive Plan and the form of Award Agreement and Option
Agreement and the rights and obligations of UAI-Cayman thereunder.
|
|
GIVEN
under the common seal of
|
||
|
GLOBAL INDEMNITY PUBLIC LIMITED COMPANY
|
||
|
|
||
|
/s/
Larry A. Frakes
|
||
|
|
||
|
/s/
Linda Hohn
|
| I. | Purpose : The purposes of this Annual Incentive Awards Program (the “Program”) are: |
| 1. | To encourage increased efficiency and profitability of Global Indemnity plc (the “Company” or “GI plc”). |
| 2. | To reward Participants’ contributions to corporate success. |
| II. | Compensation Philosophy. |
| III. | Definition of Terms. |
| A. | “Award” means the amount earned by a Participant pursuant to the provisions of the Program. |
| B. | “Base Salary” means a Participant’s W-2 wages for a calendar year excluding any extraordinary compensation such as bonuses, stock options, deferred compensation or benefits which are taxable for federal income tax purposes. For purposes of the Program, Base Salary shall also include, however, any salary deferrals which represent the employee’s portion of contributions to a qualified benefit plan or deferred compensation plan offered by GI plc and subsidiaries. |
| C. | “Beneficiary” or “Beneficiaries” means the person or persons designated by the Participant to receive any payments due from the Program in the event of the Participant’s death. Such a designation may, without notice to the Beneficiary, be changed or revoked by the Participant at any time and from time to time. The designation of the Beneficiary, and any change or revocation thereof, shall be made in writing and shall not be effective unless and until filed with and acknowledged by the Committee. |
| D. | “Code” means the Internal Revenue Code of 1986, as amended, and any successor thereto. |
| E. | “Code Section 162(m)” means the exception for performance-based compensation under Section 162(m) of the Code or any successor section and the Treasury regulations promulgated thereunder. |
| F. | “Committee” means the Compensation Committee of GI plc, as designated from time to time by the Board, or its designee. When pertaining to Covered Participants and as otherwise necessary to comply with Code Section 162(m), “Committee” shall mean a subcommittee thereof consisting solely of “outside” directors, as such term is defined by Code Section 162(m). |
| G. | “Covered Participant” means a Participant who, on the last day of GI plc’s taxable year, is the chief executive officer of GI plc or is among the four highest compensated officers (other than the chief executive officer) of GI plc as determined under Code Section 162(m). |
| H. | “Disability” means (i) “disability” as defined by long-term disability plan maintained by GI plc or by the subsidiary or division thereof by which the Participant is employed and under which the Participant is covered or (ii) as determined by the Committee in its reasonable judgment. |
| I. | “Participant” means any employee of GI plc or subsidiary who has been designated by the Committee as eligible to participate in the Program. |
| J. | “Performance Goals” means the objective performance goals established by the Committee, and if desirable for purposes of Code Section 162(m), based on one or more Performance Criteria (as defined in Annex A). |
| K. | “Program Year” means a twelve-month consecutive period commencing on each January 1 and ending on each December 31. |
| L. | “Retirement” means the Participant’s voluntary resignation in circumstances acceptable to the Committee. |
2
| IV. | Designation of Participants. |
| V. | Awards for Participants: |
3
| VI. | Payment of Awards. |
| VII. | Program Administration. |
4
| VIII. | No Assignment or Alienation. |
| IX. | General. |
5
| X. | Program Amendment and Termination. |
| XI. | Governing Law. |
6
7
| 1. |
undertake and discharge all of the rights and obligations of the Company (as defined in the
Awards Program) under the Awards Program;
|
| 2. |
exercise all of the powers of the Company as provided for in the Awards Program;
|
| 3. |
be bound by the terms of the Awards Program so that GI plc will be bound by the requirements,
without limitation, that any outstanding Awards (as defined in the Awards Program) shall be
subject to the same terms and conditions of the Awards Program as in effect immediately prior
to the effective date of this Deed Poll, save for such changes as are necessary to effectuate
and reflect the assumption by GI plc of the Awards Program and the rights and obligations of
UAI-Cayman thereunder.
|
| 4. |
GI plc hereby assumes and adopts, for the time being, the form of Award Agreement adopted by
UAI-Cayman for the issuance of Awards on and after July 2, 2010, with such amendments and
modifications thereto as may be necessary or appropriate to effectuate and reflect the
assumption by GI plc of the Awards Program and the form of Award Agreement and the rights and
obligations of UAI-Cayman thereunder.
|
|
GIVEN
under the common seal of
|
||
|
GLOBAL INDEMNITY PUBLIC LIMITED COMPANY
|
||
|
|
||
|
/s/
Larry A. Frakes
|
||
|
|
||
|
/s/
Linda Hohn
|
| Page | ||||
|
|
||||
|
ARTICLE I DEFINITIONS
|
2 | |||
|
Section 1.1
Certain Definitions
|
2 | |||
|
Section 1.2
Other Definitions
|
4 | |||
|
Section 1.3
Interpretation
|
4 | |||
|
ARTICLE II REPRESENTATIONS AND WARRANTIES
|
4 | |||
|
Section 2.1
Representations and Warranties of the Company
|
4 | |||
|
Section 2.2
Representations and Warranties of Holdings
|
5 | |||
|
Section 2.3
Representations and Warranties of Holdings II
|
5 | |||
|
Section 2.4
Representations and Warranties of the Co-investment Funds
|
5 | |||
|
ARTICLE III RESTRICTIONS ON TRANSFERS OF SHARES
|
6 | |||
|
Section 3.1
General Limitations on Transfers
|
6 | |||
|
Section 3.2
Compliance with Securities Laws
|
7 | |||
|
Section 3.3
Permitted Transfers
|
7 | |||
|
Section 3.4
Additional Provisions Relating to Restrictions on Transfers
|
7 | |||
|
ARTICLE IV REGISTRATION RIGHTS
|
9 | |||
|
Section 4.1
Piggyback Registrations
|
9 | |||
|
Section 4.2
Registration Procedures
|
10 | |||
|
Section 4.3
Indemnification
|
13 | |||
|
Section 4.4
Rule 144 Reporting
|
16 | |||
|
Section 4.5
Lock-Up Agreement
|
16 | |||
|
ARTICLE V COVENANTS
|
16 | |||
|
Section 5.1
No Voting or Conflicting Agreements
|
16 | |||
|
Section 5.2
Further Assurances
|
17 | |||
|
Section 5.3
Certain Transactions
|
17 | |||
|
Section 5.4
Confidentiality
|
17 | |||
|
ARTICLE VI EFFECTIVENESS; TERMINATION
|
17 | |||
|
Section 6.1
Effectiveness; Term
|
17 | |||
|
ARTICLE VII MISCELLANEOUS
|
18 | |||
|
Section 7.1
Notices
|
18 | |||
|
Section 7.2
Amendment; Waivers
|
19 | |||
|
Section 7.3
Successors and Assigns
|
19 | |||
|
Section 7.4
Recapitalizations and Exchanges Affecting Shares
|
19 | |||
|
Section 7.5
Governing Law
|
20 | |||
|
Section 7.6
Jurisdiction
|
20 | |||
|
Section 7.7
WAIVER OF JURY TRIAL
|
20 | |||
|
Section 7.8
Counterparts; Third Party Beneficiaries
|
20 | |||
|
Section 7.9
Entire Agreement
|
20 | |||
|
Section 7.10
Captions
|
20 | |||
|
Section 7.11
Specific Performance
|
20 | |||
|
Section 7.12
Severability
|
21 | |||
|
Section 7.13
Uncertificated Shares
|
21 | |||
i
1
2
3
| Term | Section | |
|
Action
|
7.6 | |
|
Book Entry Shares
|
7.13 | |
|
Co-investment Funds
|
Preamble | |
|
Company
|
Preamble | |
|
FPC Affiliate Transferee
|
3.3.1(a) | |
|
Holdings
|
Preamble | |
|
Holdings II
|
Preamble | |
|
Maximum Sale Number
|
4.1.3 | |
|
Joinder Agreement
|
3.1.3 | |
|
Original Agreement
|
Recitals | |
|
Piggyback Notice
|
4.1.1 | |
|
Piggyback Registration
|
4.1.1 | |
|
Shareholders
|
Preamble | |
|
Violation
|
4.3(a) |
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
|
Given under the Common Seal of
GLOBAL INDEMNITY PLC |
||||
| By: | /s/ Larry A. Frakes | |||
| Director | ||||
| By: | /s/ Linda Hohn | |||
| Director/Secretary | ||||
|
U.N. HOLDINGS (CAYMAN), LTD.
|
||||
| By: | /s/ Saul A. Fox | |||
| Name: Saul A. Fox | ||||
| Title: Director | ||||
|
U.N. HOLDINGS (CAYMAN) II, LTD.
|
||||
| By: | /s/ Saul A. Fox | |||
| Name: Saul A. Fox | ||||
| Title: Director | ||||
| U.N. CO-INVESTMENT FUND I (CAYMAN), L.P. | ||||||
|
|
||||||
| By: |
Fox Paine Capital Co-Investors International
GP, Ltd., its General Partner |
|||||
|
|
||||||
|
|
By: | /s/ Saul A. Fox | ||||
|
|
||||||
|
|
Name: Saul A. Fox | |||||
|
|
Title: Director | |||||
|
|
||||||
| U.N. CO-INVESTMENT FUND II (CAYMAN), L.P. | ||||||
|
|
||||||
| By: |
Fox Paine Capital Co-Investors International
GP, Ltd., its General Partner |
|||||
|
|
||||||
|
|
By: | /s/ Saul A. Fox | ||||
|
|
||||||
|
|
Name: Saul A. Fox | |||||
|
|
Title: Director | |||||
22
| U.N. CO-INVESTMENT FUND III (CAYMAN), L.P. | ||||||
|
|
||||||
| By: |
Fox Paine Capital Co-Investors International
GP, Ltd., its General Partner |
|||||
|
|
||||||
|
|
By: | /s/ Saul A. Fox | ||||
|
|
||||||
|
|
Name: Saul A. Fox | |||||
|
|
Title: Director | |||||
|
|
||||||
| U.N. CO-INVESTMENT FUND IV (CAYMAN), L.P. | ||||||
|
|
||||||
| By: |
Fox Paine Capital Co-Investors International
GP, Ltd., its General Partner |
|||||
|
|
||||||
|
|
By: | /s/ Saul A. Fox | ||||
|
|
||||||
|
|
Name: Saul A. Fox | |||||
|
|
Title: Director | |||||
|
|
||||||
| U.N. CO-INVESTMENT FUND V (CAYMAN), L.P. | ||||||
|
|
||||||
| By: |
Fox Paine Capital Co-Investors International
GP, Ltd., its General Partner |
|||||
|
|
||||||
|
|
By: | /s/ Saul A. Fox | ||||
|
|
||||||
|
|
Name: Saul A. Fox | |||||
|
|
Title: Director | |||||
|
|
||||||
| U.N. CO-INVESTMENT FUND VI (CAYMAN), L.P. | ||||||
|
|
||||||
| By: |
Fox Paine Capital Co-Investors International
GP, Ltd., its General Partner |
|||||
|
|
||||||
|
|
By: | /s/ Saul A. Fox | ||||
|
|
||||||
|
|
Name: Saul A. Fox | |||||
|
|
Title: Director | |||||
23
| U.N. CO-INVESTMENT FUND VII (CAYMAN), L.P. | ||||||
|
|
||||||
| By: |
Fox Paine Capital Co-Investors International
GP, Ltd., its General Partner |
|||||
|
|
||||||
|
|
By: | /s/ Saul A. Fox | ||||
|
|
||||||
|
|
Name: Saul A. Fox | |||||
|
|
Title: Director | |||||
|
|
||||||
| U.N. CO-INVESTMENT FUND VIII (CAYMAN), L.P. | ||||||
|
|
||||||
| By: |
Fox Paine Capital Co-Investors International
GP, Ltd., its General Partner |
|||||
|
|
||||||
|
|
By: | /s/ Saul A. Fox | ||||
|
|
||||||
|
|
Name: Saul A. Fox | |||||
|
|
Title: Director | |||||
|
|
||||||
| U.N. CO-INVESTMENT FUND IX (CAYMAN), L.P. | ||||||
|
|
||||||
| By: |
Fox Paine Capital Co-Investors International
GP, Ltd., its General Partner |
|||||
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By: | /s/ Saul A. Fox | ||||
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Name: Saul A. Fox | |||||
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Title: Director | |||||
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UNITED AMERICA INDEMNITY, LTD.
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| By: | /s/ Larry A. Frakes | |||
| Name: | Larry A. Frakes | |||
| Title: | President and Chief Executive Officer | |||
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Given under the Common Seal of
GLOBAL INDEMNITY PLC |
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| By: | /s/ Larry A. Frakes | |||
| Director | ||||
| By: | /s/ Linda Hohn | |||
| Director/Secretary | ||||
| (a) | “Actually Realized” with respect to tax savings, shall mean the time that any refund of taxes is actually received or applied against other taxes due, or the time of the filing of a tax return on which a loss, deduction or credit or increase in basis is applied to reduce the amount of taxes that would otherwise be payable. | ||
| (b) | “Affiliate” has the meaning specified in Rule 12b-2 of the Exchange Act. | ||
| (c) | “Articles” means the Articles of Association of GI plc. | ||
| (d) | “Closing” means the Scheme of Arrangement becoming effective. | ||
| (e) | “Closing Date “ means the date on which the Closing occurs. | ||
| (f) | “Code” has the meaning specified in the recitals to this Agreement. | ||
| (g) | “Company” has the meaning specified in the recitals to this Agreement. |
| (h) | “Company Assets” means the assets of the Company immediately prior to the Closing. |
| (i) | “Controlled Asset Transfer” means a transfer by GI plc of all or a portion of the Company Assets to a corporation controlled (within the meaning of section 368(c) of the Code) by GI plc, as described in Treasury Regulation section 1.367(a)-3(d). |
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| (j) | “Controlled Transferee” means the transferee corporation receiving Company Assets from GI plc pursuant to a Controlled Asset Transfer. |
| (k) | “Controlled Transferee Stock” means any stock received, or treated for U.S. federal income tax purposes as received, by GI plc in exchange for all or a portion of the Company Assets pursuant to a Controlled Asset Transfer. |
| (l) | “Disposition of Company Assets” means one or more sales or other transfers that would constitute a disposition for any purpose of the Code and the Treasury Regulations thereunder, within the period beginning immediately after the Closing and ending five years after the last day of the taxable year that includes the Closing Date, by a Controlled Transferee of all or substantially all of the Company Assets acquired by it in the Controlled Asset Transfer other than (A) in the ordinary course of business, or (B) in a transfer (i) in which gain or loss will not be required to be recognized under U.S. federal income tax principles provided that such transfer would not be a triggering event under Treasury Regulation section 1.367(a)-8, (ii) in which the transferee agrees, with respect to any subsequent transfer of such Company Assets, to be subject to the same obligations as apply to the Company and the Controlled Transferee under this Agreement with respect to transfers of such Company Assets, (iii) in which the Controlled Transferee agrees not to transfer the interest received in exchange for the Company Assets transferred except in a transaction that would satisfy the requirements of clauses (i), (ii) and (iv) in the definition of Disposition of Controlled Transferee Stock, and (iv) in which the Controlled Transferee (and any other recipient of an interest described in clause (iii)) agrees to notify the Notice Persons of any transfer described in clause (iii) in the manner required by Section 4 of this Agreement. |
| (m) | “Disposition of Controlled Transferee Stock” means a sale or other transfer that would constitute a disposition for any purpose of the Code and the Treasury Regulations thereunder, within the period beginning immediately after the Closing and ending five years after the last day of the taxable year that includes the Closing Date, (A) by GI plc of Controlled Transferee Stock or (B)(x) by GI plc of any interest received in exchange for Controlled Transferee Stock in a transaction that satisfies the requirements of clauses (i)-(iv) of this definition or (y) by the Controlled Transferee of any interest(s) received in exchange for all or substantially all of the Company Assets acquired by it in the Controlled Asset Transfer in a transaction that satisfies the requirements of clauses (i)-(iv) of the definition of Disposition of Company Assets (any such interests received, the “Exchange Interests”), in any manner other than in a transaction: (i) in which all the Controlled Transferee Stock or all the Exchange Interests are transferred to a |
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| single transferee; (ii) in which such transferee of the Controlled Transferee Stock or Exchange Interests agrees to be subject to the same obligations as apply to the Company under this Agreement; (iii) in which GI plc (or any other transferor that has agreed to be subject to the same obligations as apply to the Company under this Agreement) agrees not to transfer the interest received in exchange for the Controlled Transferee Stock or Exchange Interests transferred except in a transaction that satisfies the requirements of clauses (i), (ii) and (iv) of this sentence and to notify the Notice Persons of any such transfer in the manner required by Section 4 of this Agreement; and (iv) with respect to which gain or loss will not be required to be recognized by GI plc (or by any transferor of the Exchange Interests that agreed to be subject to the same obligations as apply to the Company under this Agreement) under U.S. federal income tax principles provided that such transfer would not be a triggering event under Treasury Regulation section 1.367(a)-8. |
| (n) | “DTC” means the Depository Trust and Clearing Corporation. | ||
| (o) | “Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations promulgated thereunder. | ||
| (p) | “Exchange Interests” has the meaning specified in Section 1(m). | ||
| (q) | “Fox Paine” has the meaning specified in the recitals to this Agreement. | ||
| (r) | “GI plc” has the meaning specified in the recitals to this Agreement. | ||
| (s) | “GRA” has the meaning specified in the recitals to this Agreement. | ||
| (t) | “GRA Partner” has the meaning specified in Section 4(b). | ||
| (u) | “IRS” means the United States Internal Revenue Service. | ||
| (v) | “Notice Person” has the meaning specified in Section 14. | ||
| (w) | “Opinion” has the meaning specified in Section 4(c). | ||
| (x) | “Partners” has the meaning specified in the recitals to this Agreement. |
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| (y) | “Restructuring” has the meaning specified in the recitals to this Agreement. | ||
| (z) | “Scheme of Arrangement” has the meaning specified in the recitals to this Agreement. |
| (aa) | “Transaction” has the meaning specified in the recitals to this agreement. | ||
| (bb) | “Transferee” means a person that is the transferee of Class A or Class B ordinary shares of GI plc transferred by Fox Paine or its Affiliates. |
| (cc) | “Treasury Regulations” means the final and temporary (but not proposed) tax regulations promulgated under the Code, as such regulations may be amended from time to time. |
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UNITED AMERICA INDEMNITY LTD.
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| By: | /s/ Larry A. Frakes | |||
| Name: | Larry A. Frakes | |||
| Title: | President and Chief Executive Officer | |||
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FOX PAINE CAPITAL FUND II INTERNATIONAL L.P.,
acting by Fox Paine Capital International GP L.P., its general partner, acting by Fox Paine International GP, Ltd., its general partner |
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| By: | /s/ Saul A. Fox | |||
| Name: | Saul A. Fox | |||
| Title: | Director | |||
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| UNITED AMERICA INDEMNITY, LTD. | ||||||
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By: |
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Name: | |||||
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| INDEMNITEE: | ||||||
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Exhibit 99.1
PRESS RELEASE
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For release:
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July 2, 2010 | |
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Contact:
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Media | |
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Linda Hohn | |
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Associate General Counsel | |
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(610) 660-6862 | |
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lhohn@uai-group.com |
United America Indemnity, Ltd. Completes Redomestication to Ireland from the Cayman Islands
DUBLIN, Ireland, July 2, 2010 – Global Indemnity plc ( NASDAQ: GBLI) announced today that the redomestication transaction previously approved by the shareholders of United America Indemnity, Ltd. (NASDAQ: INDM) was completed. United America Indemnity, Ltd., a Cayman Islands company, is now a wholly-owned subsidiary of Global Indemnity plc, an Irish company, and the former shareholders of United America Indemnity, Ltd. are now the shareholders of Global Indemnity plc, which will continue the registration with the U.S. Securities and Exchange Commission (SEC) and be subject to the SEC’s standard reporting requirements.
In the transaction, the holders of United America Indemnity, Ltd.’s Class A and Class B common shares received Global Indemnity plc’s Class A and Class B ordinary shares, respectively, on a 1 for 2 basis (1 Global Indemnity share issued in exchange for each 2 United America Indemnity shares outstanding). United America Indemnity’s stock ticker symbol “INDM” is replaced by Global Indemnity’s stock ticker symbol “GBLI”.
About Global Indemnity plc and its subsidiaries
Global Indemnity plc, through its several direct and indirect wholly owned subsidiary insurance and reinsurance companies, provides both admitted and nonadmitted specialty property and casualty insurance coverages in the United States, as well as reinsurance throughout the world. Global Indemnity plc’s five principal divisions include:
United States Based Insurance Operations :
Penn-America , which includes property and general liability products for small commercial businesses distributed through a select network of wholesale general agents with specific binding authority;
United National , which includes property, general liability, and professional lines products distributed through program administrators with specific binding authority;
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Diamond State , which includes property, general liability, and professional lines products distributed through wholesale brokers and program administrators with specific binding authority.
CompGlobal, which provides workers’ compensation insurance .
International Reinsurance Operations :
Wind River , a Bermuda based treaty and facultative reinsurer of excess and surplus lines and specialty property and casualty insurance.
Forward-Looking Information
This release contains forward-looking information about Global Indemnity plc and the operations of Global Indemnity plc that is intended to be covered by the safe harbor for forward-looking statements provided by the Private Securities Litigation Reform Act of 1995. Forward- looking statements are statements that are not historical facts. These statements can be identified by the use of forward-looking terminology such as “believe,” “expect,” “may,” “will,” “should,” “project,” “plan,” “seek,” “intend,” or “anticipate” or the negative thereof or comparable terminology, and include discussions of the reorganization to Ireland.
The business and operations of Global Indemnity plc is and will be subject to a variety of risks, uncertainties and other factors. Consequently, actual results and experience may materially differ from those contained in any forward-looking statements. For example, Global Indemnity plc’s forward-looking statements about the re-domiciling and its anticipated effects, offices and operations, stock trading matters, and tax and financial matters could be affected by risks, including that the re-domiciling transactions may not close, shareholders or regulators may not provide required approvals, Global Indemnity plc may encounter difficulties moving jurisdictions and opening new offices and functions, tax and financial expectations and advantages might not materialize or might change, Global Indemnity plc’s stock price could decline, and Irish corporate governance and regulatory schemes could prove different or more challenging than currently expected. Risks, uncertainties and other factors that could cause Global Indemnity plc’s results and experience to differ from those projected include, but are not limited to, the following: (1) the ineffectiveness of Global Indemnity plc’s business strategy due to changes in current or future market conditions; (2) the effects of competitors’ pricing policies, and of changes in laws and regulations on competition, including industry consolidation and development of competing financial products; (3) greater frequency or severity of claims and loss activity than Global Indemnity plc’s underwriting, reserving or investment practices have anticipated; (4) decreased level of demand for Global Indemnity plc’s insurance products or increased competition due to an increase in capacity of property and casualty insurers; (5) risks inherent in establishing loss and loss adjustment expense reserves; (6) uncertainties relating to the financial ratings of Global Indemnity plc’s insurance subsidiaries; (7) uncertainties arising from the cyclical nature of Global Indemnity plc’s business; (8) changes in Global Indemnity plc’s relationships with, and the capacity of, its general agents; (9) the risk that Global Indemnity plc’s reinsurers may not be able to fulfill obligations; (10) investment performance and credit risk; and (11) uncertainties relating to governmental and regulatory policies. The foregoing review of important factors should be read in conjunction with the other cautionary statements that are included in United America Indemnity, Ltd.’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009 and the Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, as well as in the materials filed and to be filed with the U.S. Securities and Exchange Commission (SEC). Global Indemnity plc does not make any commitment to revise or update any forward-looking statements in order to reflect events or circumstances occurring or existing after the date any forward-looking statement is made.
SOURCE Global Indemnity plc
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