Cayman Islands
(State or other jurisdiction of incorporation or registration) |
None
(I.R.S. Employer Identification No.) |
Leslie J. Croland, Esq.
Edwards Angell Palmer & Dodge LLP 350 East Las Olas Boulevard Fort Lauderdale, Florida 33301-4215 (954) 727-2600 |
Justin P. Klein, Esq.
Gerald J. Guarcini, Esq. Ballard Spahr Andrews & Ingersoll, LLP 1735 Market Street, 51st Floor Philadelphia, Pennsylvania 19103 (215) 665-8500 |
Proposed maximum | Proposed maximum | |||||||||||
Title of each class of | Amount to be | offering price | aggregate offering | Amount of | ||||||||
securities to be registered | registered(1) | per unit(2) | price | registration fee | ||||||||
Ordinary Shares, par value $0.60 per share
|
1,725,000 | $26.52 | $45,747,000 | $4,895 | ||||||||
(1) | Includes 225,000 ordinary shares that the underwriters have the option to purchase to cover over-allotments, if any. |
(2) | Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) of the Securities Act on the basis of the average of the high and low sales prices of the Registrants ordinary shares on the NASDAQ Global Select Market on October 5, 2006. |
The information in this prospectus is not
complete and may be changed. We may not sell these securities
until the registration statement filed with the Securities and
Exchange Commission is effective. This prospectus is not an
offer to sell these securities, and it is not soliciting an
offer to buy these securities in any jurisdiction where the
offer or sale is not permitted.
|
Per Share | Total | |||||||
Public offering price
|
$ | $ | ||||||
Underwriting discounts and commissions
|
$ | $ | ||||||
Proceeds to Consolidated Water
|
$ | $ |
Brean Murray, Carret & Co. |
The Seidler Companies Incorporated |
i
| Retail Water Operations. We produce and supply water to end-users, including residential, commercial and government customers in the Cayman Islands and a resort in The Bahamas. In the Cayman Islands, we operate under an exclusive retail license issued by the government to provide water in two of the most populated and rapidly developing areas in the Cayman Islands. In 2005, our retail water operations generated 51% of our consolidated revenues. | |
| Bulk Water Operations. We produce and supply water to government-owned distributors in the Cayman Islands, Belize and The Bahamas. In 2005, our bulk water operations generated 45% of our consolidated revenues. | |
| Service Operations. We provide engineering and management services for desalination projects, including designing and constructing desalination plants and managing and operating desalination plants owned by other companies. In 2005, our service operations generated 4% of our consolidated revenues. | |
| Affiliate Operations. Our affiliate, Ocean Conversion (BVI) Ltd. (or OC-BVI), produces and supplies bulk water to the British Virgin Islands Water and Sewerage Department. We account for our interests in OC-BVI using the equity method of accounting and do not consolidate OC-BVIs operating results in our financial statements. |
1
June 30, 2006 | December 31, 2005 | ||||||||||
Location | Plants | Capacity(1) | Location | Plants | Capacity(1) | ||||||
Cayman Islands
|
6 | 5.9 | Cayman Islands | 6 | 5.7 | ||||||
The Bahamas(2)
|
3 | 10.0 | The Bahamas | 2 | 4.3 | ||||||
British Virgin Islands(3)
|
2 | 1.7 | British Virgin Islands(3) | 2 | 1.7 | ||||||
Barbados
|
1 | 1.3 | Barbados | 1 | 1.3 | ||||||
Belize
|
1
|
0.5
|
Belize |
1
|
0.4
|
||||||
Total
|
13 | 19.4 | Total | 12 | 13.4 | ||||||
(1) | Millions of gallons of water per day. |
(2) | Includes our Blue Hills plant, which we substantially completed in July 2006. |
(3) | Owned and operated by our affiliate, OC-BVI. Does not include OC-BVIs Bar Bay plant, which is currently under construction and expected to be completed in the fourth quarter of 2006. |
| Maximizing the benefits of our exclusive retail license on Grand Cayman. | |
| Expanding our existing operations in the Cayman Islands, Belize, Barbados and The Bahamas. | |
| Penetrating new markets where there is demand for potable water and where we believe production would be profitable. | |
| Broadening our existing and future operations into complementary services, such as wastewater management. |
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
Ordinary shares offered by us
1,500,000 shares
Ordinary shares to be outstanding after this offering
14,231,133 shares
(1)
The NASDAQ Global Select Market symbol
CWCO
Ordinary shares
52-week
price range
(through October 10, 2006)
Low: $15.12
High: $31.79
Current annualized dividend rate
$0.24 per share
Use of proceeds
We estimate that our net proceeds from this offering will be
approximately $37.5 million, or approximately
$43.2 million if the underwriters exercise their over-
allotment option in full, based on an estimated offering price
of $26.75 per share. We intend to use approximately
$10.0 million of the net proceeds to repay debt and the
remaining proceeds for capital expenditures and general
corporate purposes. We may also use a portion of the remaining
net proceeds for acquisitions and strategic investments, if
future opportunities arise.
Over-allotment option
225,000 ordinary shares
Risk factors
Investing in our ordinary shares involves risks. See Risk
Factors beginning on page 6 to read about certain
risk factors you should consider before investing in our
ordinary shares.
(1)
Based on 12,731,133 ordinary shares outstanding as of
September 15, 2006.
Table of Contents
Six Months
Ended June 30,
Year Ended December 31,
2006
2005
2005
2004
2003
(Unaudited)
Statement of Income Data:
Revenues:
$
9,917,977
$
6,543,334
$
13,372,103
$
12,089,491
$
10,918,151
8,064,783
5,565,894
11,724,438
10,303,074
7,045,761
887,779
501,126
1,090,664
888,848
1,090,293
18,870,539
12,610,354
26,187,205
23,281,413
19,054,205
Gross profit
9,182,834
5,180,090
10,354,397
9,609,700
7,813,757
Income from operations
4,960,760
2,246,868
4,209,186
5,062,922
4,038,400
Net income
5,600,039
2,855,410
5,514,258
6,197,383
4,177,081
Basic earnings per ordinary share
$
0.46
$
0.25
$
0.47
$
0.54
$
0.42
Diluted earnings per ordinary share
$
0.44
$
0.24
$
0.45
$
0.53
$
0.41
As of June 30,
As of December 31,
2006
2005
2005
2004
2003
(Unaudited)
Balance Sheet Data:
Current assets
$
15,609,390
$
17,373,163
$
21,176,498
$
19,208,154
$
15,337,723
Total assets
100,627,667
71,679,055
88,365,191
70,825,049
68,562,126
Long-term debt
17,857,142
11,000,641
19,378,212
12,856,226
16,633,437
Current portion of long-term debt
3,132,356
3,721,144
3,472,330
3,733,144
3,763,144
Shareholders equity
65,002,830
51,272,833
59,563,079
48,371,894
44,248,527
Table of Contents
Table of Contents
Table of Contents
Table of Contents
regulatory risks, including government relations difficulties,
local regulations and currency controls;
receiving and maintaining necessary permits, licenses and
approvals;
risks related to operating in foreign countries, including
political instability, reliance on local economies,
environmental problems, shortages of materials, immigration
restrictions and limited skilled labor;
risks related to development of new operations, including
inaccurate assessment of the demand for water, engineering
difficulties and inability to begin operations as
scheduled; and
risks relating to greater competition in these new territories,
including the ability of our competitors to gain or retain
market share by reducing prices.
Table of Contents
restricting foreign ownership of us;
providing for the expropriation of our assets by the government;
providing for nationalization of public utilities by the
government;
providing for different water quality standards;
unilaterally changing or renegotiating our licenses and
agreements;
restricting the transfer of U.S. currency; or
causing currency exchange fluctuations/devaluations or making
changes in tax laws.
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Year
High
Low
Dividend
$6.000
$3.438
$
0.2000
7.725
5.385
0.2100
10.850
6.750
0.2100
15.500
8.710
0.2300
22.475
13.650
0.2375
Quarter
$
10.600
$8.710
$
0.0575
15.000
9.300
0.0575
13.665
9.880
0.0575
15.500
10.700
0.0575
$
17.435
$
13.650
$
0.0575
20.305
15.970
0.0600
22.475
17.695
0.0600
20.920
15.120
0.0600
$
28.900
$
19.750
$
0.0600
31.790
22.430
0.0600
28.480
20.770
0.0600
Month
$
27.750
$
22.520
31.790
26.500
30.480
22.430
26.050
20.770
28.480
22.900
28.280
24.000
Table of Contents
on an actual basis; and
on an as adjusted basis giving effect to
(i) our sale in August 2006 of approximately
$15.8 million of 5.95% secured bonds resulting in our
receipt of approximately $15.0 million in net proceeds of
which approximately $4.0 million was used to repay debt
outstanding under a short-term line of credit, and (ii) our
receipt of the estimated $37.5 million in net proceeds from
this offering at an assumed public offering price of
$26.75 per share (the last reported sale price of our
ordinary shares on October 10, 2006) and the application of
those net proceeds as set forth under Use of
Proceeds.
As of June 30, 2006
% of
% of
Actual
Capitalization
As Adjusted
Capitalization
(Unaudited)
$
65,002,830
78.4
%
$
102,509,680
81.8
%
17,857,142
21.6
%
22,857,142
18.2
%
$
82,859,972
100.0
%
$
125,366,822
100.0
%
(1)
Includes (i) ordinary shares and Class B ordinary
shares, par value $0.60 per share: 19,800,000 shares
authorized; 12,388,433 ordinary shares issued and outstanding at
June 30, 2006, actual; and 13,888,433 ordinary shares
issued and outstanding at June 30, 2006, as adjusted (there
were no Class B ordinary shares outstanding at
June 30, 2006, actual or as adjusted); and
(ii) Redeemable Preference Shares, par value $0.60 per
share: 200,000 shares authorized and 27,516 shares
issued and outstanding at June 30, 2006, actual and as
adjusted.
(2)
All of our long-term debt is secured.
Table of Contents
$
26.75
$
4.63
2.20
6.83
19.92
Shares Acquired
Total Consideration
Average Price
Number
Percentage
Amount
Percentage
per Share
1,500,000
%
$
40,125,000
%
$
26.75
(1)
%
%
$
100
%
$
100
%
(1)
Assumes the exercise of options to acquire an aggregate
of ordinary
shares by our directors and officers.
Table of Contents
an individual that is a citizen or resident of the United
States, including an alien individual who is a lawful permanent
resident of the United States or meets the substantial
presence test under Section 7701(b) of the Internal
Revenue Code of 1986, as amended (or the Code);
a corporation or other entity taxable as a corporation created
or organized in or under the laws of the United States or a
political subdivision thereof;
an estate, the income of which is subject to United States
federal income tax regardless of its source;
Table of Contents
a trust, if a United States court can exercise primary
supervision over the administration of the trust and one or more
United States persons can control all substantial trust
decisions or, if the trust was in existence on
September 20, 1996, and it has elected to continue to be
treated as a United States person; or
any holder whose income or gain in respect to its investment is
effectively connected with its conduct of a trade or business in
the United States.
Table of Contents
Table of Contents
To supply water for domestic and all other purposes in the
Cayman Islands and to construct the necessary works for such
supply;
To purchase, take on lease, hire or otherwise acquire waterworks
or the right to supply and work water undertakings;
To fit out, maintain and work with any form of mechanical steam
or electric or other power the necessary works for the supply of
water including the construction and fitting out of pumping
stations, reservoirs, desalinators, reverse osmosis equipment,
pipe lines and all other works necessary or reasonably required
for the supply of water for the purposes aforesaid;
To acquire, manufacture, repair and maintain all machines,
machinery pipes, utensils, apparatus and materials required for
the supply aforesaid;
To make from time to time such applications to the Cayman
Islands government or other authority as may be thought
necessary or desirable for powers to construct maintain and work
our business or to acquire or lease land, buildings, easements,
water rights, water and other works and any extensions thereof
and to execute any works in connection therewith;
To purchase, take upon, lease or otherwise acquire or build upon
or improve any lands or building or any estates or interest
therein and any licenses, rights, easements or privileges which
may be considered necessary or expedient for the purposes of our
business and to do any such things notwithstanding that in any
case, the whole of the land may not be required for such
purposes;
To manufacture, buy, sell, let upon hire, with or without an
option of purchase, all pipes, taps, valve engines, tools,
machines and other chattels and things used or which may at any
time hereafter be used in the establishment, maintenance,
equipping or working of the aforesaid;
To sell, grant, let, exchange or otherwise dispose of absolutely
or conditionally or for any limited estate or interest, all or
any part or section of, the undertaking worked by us or any of
them or any or any part of the property or properties, rights or
powers thereof or any licenses, rights or privileges in over or
in relation to any such property or any part thereof;
To purchase or otherwise acquire any lands and buildings, and to
utilize the same for the treatment, re-use and disposal of
sewage, and to construct, erect and lay down any buildings,
engines, pumps, sewers, tanks, drains, culverts, channels,
sewage or other works or things that may be necessary or
convenient for any of our objects;
To manufacture, purchase, sell, deal in or otherwise dispose of
chemical vegetable and other manures and other substances,
materials and things that may be conveniently dealt with in
connection with sewage works; and
Table of Contents
To engage in or carry on any other lawful trade, business or
enterprise which may at any time appear to our directors capable
of being conveniently carried on in conjunction with any of the
aforementioned businesses or activities or which may appear to
our directors likely to be profitable to us.
Table of Contents
Table of Contents
Table of Contents
Underwriters
Number of Shares
1,500,000
the registration statement, of which the prospectus is a part,
has been declared effective;
the representations and warranties made by us to the
underwriters are true;
there is no material adverse change in our business;
we deliver customary closing documents to the underwriters;
receipt and acceptance of the ordinary shares by the
underwriters; and
the underwriters right to reject orders in whole or in
part.
Table of Contents
Per Share
Total
Without Over-
With Over-
Without Over-
With Over-
Allotment
Allotment
Allotment
Allotment
to be paid by us
$
$
$
$
stabilizing transactions;
short sales;
syndicate covering transactions;
purchases to cover positions created by short sales; and
penalty bids.
Table of Contents
Table of Contents
$
4,895
4,500
100,000
100,000
300,000
3,500
45,000
50,000
3,605
$
611,500
Table of Contents
Table of Contents
Our Annual Report on
Form
10-K
for the
fiscal year ended December 31, 2005, filed on
March 16, 2006;
Our Quarterly Reports on
Form
10-Q
for the
fiscal quarter ended March 31, 2006 and the second fiscal
quarter ended June 30, 2006, filed on May 10, 2006 and
August 9, 2006, respectively;
Our Current Reports on
Form
8-K
filed on
March 21, 2006, May 15, 2006, May 26, 2006,
August 9, 2006, August 14, 2006, October 2, 2006 and
October 6, 2006; and
Our Registration Statement on
Form
20-F
filed on
April 24, 1995.
Table of Contents
Table of Contents
II-1
II-2
Table of Contents
(1)
For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by
the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(2)
For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial
bona fide
offering thereof.
Table of Contents
II-3
II-4
CONSOLIDATED WATER CO. LTD.
By:
/s/
Frederick W. McTaggart
Frederick W. McTaggart
Director, Chief Executive Officer and
President
Signature
Title
/s/
Frederick W.
McTaggart
Director, Chief Executive Officer and President (Principal
Executive Officer)
/s/
David W. Sasnett
Director, Executive Vice President & Chief Financial
Officer (Principal Financial and Accounting Officer)
/s/
Jeffrey M. Parker
Director and Chairman of the Board of Directors
/s/
William T. Andrews
Director
/s/
Brian E. Butler
Director
/s/
Steven A. Carr
Director
/s/
Carson K. Ebanks
Director
Table of Contents
Signature
Title
/s/
Richard L. Finlay
Director
/s/
Clarence B.
Flowers, Jr.
Director
/s/
Wilmer Pergande
Director
/s/
Leonard J. Sokolow
Director
/s/
Raymond Whittaker
Director
By:
/s/
David W. Sasnett
Authorized U.S. Representative
Table of Contents
II-5
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
Very truly yours,
CONSOLIDATED WATER CO. LTD. |
||||
By: | ||||
Frederick W. McTaggart | ||||
President and Chief Executive Officer |
35
36
Number of Firm Shares
Underwriter
to be Purchased
[_________]
[_________]
[_________]
[_________]
[1,500,000]
Jeffrey M. Parker
Frederick W. McTaggart David W. Sasnett Ramjeet Jerrybandan Gregory S. McTaggart Robert B. Morrison Gerard J. Pereira William T. Andrews Brian E. Butler Steven A. Carr Carson K. Ebanks Richard L. Finlay Clarence B. Flowers, Jr. Wilmer Pergande Leonard Sokolow Raymond Whittaker |
A-1
A-2
A-3
1. | The name of the Company is Consolidated Water Co. Ltd. | |
2. | The Registered Office of the Company shall be at the offices of Consolidated Water Co. Ltd., 4 th Floor, Windward Three, Regatta Office Park, West Bay Road, P. O. Box 1114, Grand Cayman, Cayman Islands, British West Indies. | |
3. | Subject to the following provisions of this Memorandum, the objects for which the Company is established are unrestricted. | |
4. | Subject to the following provisions of this Memorandum, the Company shall have and be capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit, as provided by Section 26(2) of The Companies Law (1998 Revision). | |
5. | Without limiting the generality of paragraphs 3 and 4, the objects and powers of the Company shall include but not be limited to the following: |
(i) | To supply water for domestic and all other purposes in the Cayman Islands and to construct the necessary works for such supply. | ||
(ii) | To purchase take on lease hire or otherwise acquire waterworks or the right to supply and work water undertakings. | ||
(iii) | To fit out maintain and work with any form of mechanical steam or electric or other power the necessary works for the supply of water including the construction and fitting out of pumping stations reservoirs desalinators reverse osmosis equipment pipe lines and all other works necessary or reasonably required for the supply of water for the purposes aforesaid. | ||
(iv) | To acquire manufacture repair maintain all machines machinery pipes utensils apparatus: and materials required for the supply aforesaid. | ||
(v) | To make from time to time such applications to the Cayman Islands Government or other authority as may be thought necessary or desirable for powers to construct maintain and work the business of the Company or to acquire or lease land buildings easements water rights water and other |
works and any extensions thereof and to execute any works in connection therewith. |
To purchase take upon lease or otherwise acquire or build upon or improve any lands or buildings or any estates or interest therein and any licenses rights easements or privileges which may be considered necessary or expedient for the purposes of the business of the Company and to do any such things notwithstanding that in any case the whole of the land may not be required for such purposes. | |||
(vii) | To manufacture buy sell let upon hire with or without an option of purchase, all pipes taps valves engines tools machines and other chattels and things used or which may at any time hereafter be used in the establishment maintenance equipping or working of the aforesaid. | ||
(viii) | To sell grant let exchange or otherwise dispose of absolutely or conditionally or for any limited estate or interest all or any part or section of the undertaking worked by the Company or any of them or any or any part of the property or properties rights or powers thereof or any licenses rights or privileges in over or in relation to any such property or any part thereof. | ||
(ix) | To purchase or otherwise acquire any lands and buildings, and to utilise the same for the treatment re-use and disposal of sewage, and to construct erect and lay down any buildings engines pumps sewers tanks drains culverts channels sewage or other works or things that may be necessary or convenient for any of the objects of the Company. | ||
(x) | To manufacture purchase sell deal in or otherwise dispose of chemical vegetable and other manures and other substances materials and things that may be conveniently dealt with in connection with sewage works. | ||
(xi) | To engage in or carry on any other lawful trade, business or enterprise which may at any time appear to the Directors or the Company capable of being conveniently carried on in conjunction with any of the aforementioned businesses or activities or which may appear to the Directors or the Company likely to be profitable to the Company. |
And it is hereby declared that the intention is that each of the objects specified in each clause of this paragraph shall, except where otherwise expressed in such clause, be an independent main object and be in no way limited or restricted by reference to or inference from the terms of any other clause or the name of the Company. | ||
6. | Nothing in this Memorandum shall permit the Company to carry on a business for which a license is required under the laws of the Cayman Islands unless duly licensed. | |
7. | The liability of each member is limited to the amount from time to time unpaid on such members shares. |
-2-
8. | The share capital of the Company is CI$10,000,000.00 divided into 19,800,000 ordinary shares of a nominal or par value of CI$0.50 each and 200,000 redeemable preference shares of a nominal or par value of CI$0.50 each. | |
9.(a) | The Ordinary Shares and the Redeemable Preference Shares shall rank pari passu for all purposes except as follows:- |
(i) | Any Redeemable Shares in issue and outstanding shall subject to the terms of issue, be redeemable at any time at the option of the Company by written notice to the address of the holder shown in the Register of Members; | ||
(ii) | The price per Redeemable Preference Share payable upon redemption shall, subject to the terms of issue, be a sum equal to the par value and premium paid or credited as paid up on the Redeemable Preference Share at the time of issue thereof, plus such additional premium, if any, as the Directors may deem fair and reasonable, provided that the redemption payment shall not exceed the amount payable on a winding up; | ||
(iii) | Redemption of a Redeemable Preference Share shall take place with effect from such date as may be specified by the Directors; | ||
(iv) | On or before the date of redemption the certificate representing the Redeemable Preference Shares being redeemed shall be submitted for cancellation but submission of such certificate shall not be a condition of redemption unless the Directors so decide; | ||
(v) | Where a certificate representing both Redeemable Preference Shares to be redeemed and Redeemable Preference Shares not to be redeemed is submitted to the Company, it shall issue a new certificate for the balance of the Redeemable Preference Shares not being redeemed; | ||
(vi) | In a winding up, the surplus assets if any available for distribution to Members shall be applied first in paying to the holders of the Redeemable Preference Shares a sum equal to the par value and premium paid up or credited as paid up thereon at the time of issue. Secondly in paying to the holders of the Ordinary Shares a sum equal to the par value and premium paid up or credited as paid up thereon at the time of issue and thirdly to the holders of the Ordinary Shares and Redeemable Preference Shares according to the number of shares held; | ||
(vii) | The Ordinary Shares and the Redeemable Preference Shares shall rank equally for voting and dividend purposes. |
(b) | The Directors may allot issue grant options over or otherwise dispose of shares of the Company to such persons at such times and on such terms as they think proper. |
-3-
SIGNATURE, NAME, OCCUPATION,
AND ADDRESS OF SUBSCRIBER |
NUMBER OF SHARES
TAKEN BY SUBSCRIBER |
Signed
|
1 | |||
|
||||
_____________________________________________
|
||||
John Cohien, Solicitor
|
||||
P.O. Box 309, Grand Cayman
|
||||
|
||||
Signed _______________________________________
|
1 | |||
Douglas Calder, Solicitor Grand Cayman
|
||||
|
||||
Signed
|
||||
Angela Crichton, Solicitor P.O.
|
||||
Box 381, Grand Cayman
|
||||
|
||||
(Signed) _____________________________________
|
1 | |||
M. Boyle
|
||||
Witness to the above signatures
|
-4-
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
CONSOLIDATED WATER CO. LTD.
(as Amended by Special Resolution May 10, 2006)
1.
TABLE A
1.01
The regulations in Table A in the Schedule to the Companies Law (1998 Revision) do not apply
to this company.
2.
INTERPRETATION
2.01
In these Articles where the context permits:
Articles means these Articles of Association as altered from time to time;
Auditors means the auditors for the time being of the Company;
circular resolution means a resolution passed in accordance with these Articles without a
meeting;
class meeting means a separate meeting of the holders of a class of shares;
clear days in relation to notice of a meeting means days falling after the day on which
notice is given or deemed to be given and before the day of the meeting;
Company means the above-named company;
Directors means the directors, or the sole
director, for the time being of the Company;
holder in relation to a share of the Company means the member or members for the time
being registered in the Register as the holder of the share;
month means calendar month;
ordinary resolution means a resolution passed at a general meeting (or, if so specified, a
class meeting) of the Company by a simple majority of the votes cast, or a circular
resolution;
paid-up means paid-up or credited as paid-up;
Register means the register of members of the Company;
Registered Office means the registered office for the time being of the Company;
Seal means the common seal or any official or duplicate seal of the Company,
Secretary means the secretary or assistant secretary for the time being of the Company,
share includes a fraction of a share; | ||
special resolution means a resolution passed as such at a general meeting (or, if so specified, a class meeting) of the Company by a majority of three-quarters of the votes cast, as provided in the Statute, or a circular resolution; | ||
Statute means the Companies Law (1998 Revision) of the Cayman Islands and every modification or re-enactment thereof for the time being in force; | ||
written and in writing import all methods of representing, reproducing or communicating words or numerals in permanent visible form, including printing, lithography, photography, telecopying and telexing; | ||
year means calendar year. | ||
2.02 | In these Articles where the context permits: |
(a) | Words importing the singular number-include the plural and vice versa; | ||
(b) | Words importing the masculine gender include the feminine gender and vice versa; | ||
(c) | Words importing persons include companies or associations or bodies of persons, corporate or unincorporate; | ||
(d) | The word may is permissive; the word shall is imperative; | ||
(e) | A reference to a statutory provision shall be deemed to include any amendment or re-enactment thereof. |
2.03 | Subject as aforesaid, words defined or used in the Statute have the same meaning in these Articles. | |
2.04 | The headings in these Articles are for ease of reference only and shall not affect the construction or interpretation of these Articles. | |
3. | PRELIMINARY | |
3.01 | The Company may commence business immediately upon registration pursuant to the Statute. | |
3.02 | The Company may ratify any contract or other transaction entered into in its name or on its behalf prior to registration. | |
3.03 | The preliminary expenses of incorporating the Company shall be paid by the Company, including any expenses concerned with the issue of shares by the Company or with any contract or transaction ratified pursuant to the foregoing Sub-Article. The preliminary expenses may be charged to income or capital or amortised over any period as the |
- 2 -
- 3 -
(a) | such notice shall be deemed to be solely for the holders convenience; | ||
(b) | the Company shall not be required in any way to recognise any beneficiary, or the beneficiary, of the trust as having an interest in the share or shares concerned; | ||
(c) | the Company shall not be concerned with the trust in any way, as to the identity or powers of the trustees, the validity, purposes or terms of the trust, the question of whether anything done in relation to the shares may amount to a breach of trust or otherwise; and | ||
(d) | the holder shall keep the Company fully indemnified against any liability or expense which may be incurred or suffered as a direct or indirect consequence of the Company entering notice of the trust in the Register or on a share certificate and continuing to recognise the holder as having an absolute right to the entirety of the share or shares concerned. |
6.05 | (i) | To determine Members entitled to notice of or to vote at any meeting or any adjournment of it, or to receive payment of any dividend, or in order to determine Members for any other purpose, the Directors may close the Register for a stated period not exceeding in any case fourteen (14) consecutive days. If the Register is closed to determine the members entitled to notice of or to vote at a meeting, then it must be closed for at least ten (10) days immediately before that meeting, and the first day of the closure will be the record date. |
(ii) | Instead of closing the Register, the Directors may fix a date as the record date for |
- 4 -
any determination of members, the date in any case to be not more than ninety (90) days before the date on which the particular action, requiring the determination of members, is to be taken. | |||
(iii) | If the Directors do not close the Registrar or fix any record date for determining the members entitled to receive notice of or to vote at any meeting or to receive a dividend, the date on which notice of the meeting is mailed or, in the case only of an interim dividend or distribution declared or effected by the Directors, the date on which the resolution declaring the dividend or effecting the distribution is passed will be record date for determining the members. When a determination of persons entitled to vote at any meeting has been made under this Article, that determination will apply to any adjournment of it. |
7. | SHARE CERTIFICATES | |
7.01 | Share certificates shall be in such form as the Directors determine provided that a share certificate shall specify the name of the holder and the number and class of shares to which it relates and the amount paid up thereon. Share certificates may not be issued in bearer form. | |
7.02 | Share certificates shall be issued under the Seal affixed in accordance with these Articles provided that the Directors may authorise share certificates to be issued with the Seal or the authorised signature(s) affixed or represented by printing or other mechanical process. | |
7.03 | Every person whose name is entered as a member in the Register shall be entitled on request to one certificate for all his shares of each class or, upon payment of a fee not exceeding ten Cayman Islands dollars per additional certificate, to several certificates, each representing a part of his holding. A member whose holding of shares has been reduced by transfer, redemption or otherwise shall be entitled on request to a certificate for the balance. | |
7.04 | In the case of joint holders the Company shall not be bound to issue more than one share certificate; and delivery of the certificate to one of the holders shall be sufficient delivery to all the holders. | |
7.05 | A member wishing to exercise his rights, if any, to transfer or redeem shares in accordance with these Articles may do so only upon surrendering to the Company the share certificate(s), if any, representing such shares. | |
7.06 | If a share certificate is damaged or defaced or alleged to have been lost, stolen or destroyed, a new certificate representing the same shares may be issued to the holder upon request subject to delivery up of the old certificate or, if alleged to have been lost, stolen or destroyed, compliance with such conditions as to evidence and indemnity and the payment of expenses of the Company in connection with the request (including the investigation of evidence) as the Directors think fit. |
- 5 -
8. | TRANSFER OF SHARES | |
8.01 | Transfers of shares shall be in writing in any usual or common form in use in the Cayman Islands or in any other form approved by the Directors. | |
8.02 | A share transfer shall be signed by or on behalf of the transferor and, in the case of partly paid shares, by the transferee also. | |
8.03 | The transferor of a share shall be deemed to remain the holder of the share until the name of the transferee is entered into the Register in respect thereof | |
8.04 | In the case of a transfer of shares issued subject to special restrictions or requirements as to transfer the Directors may, as a condition of approval or registration, require the transferor to reimburse the Company for all expenses incurred in connection with the transfer. | |
8.05 | The registration of transfers shall be suspended during any period in which the Register is closed in accordance with these Articles. | |
9. | TRANSMISSION OF SHARES | |
9.01 | Following the death of a member the survivor or survivors where the deceased was a joint holder, and the legal personal representatives of the deceased where he was a sole holder, shall be the only persons recognised by the Company as having any title to the shares previously held by the deceased, but nothing in this Article shall release the estate of the deceased from any liability in respect of shares which had been held by him, whether solely or jointly. | |
9.02 | A person becoming entitled to a share by reason of the death or bankruptcy of the holder or otherwise by operation of law may upon producing such evidence of his title as the Directors may require, elect either to be registered himself as the holder of the share or to make such transfer of the share as the holder could have made. An election pursuant to this Sub-Article to be registered as holder shall be made in writing signed by or on behalf of the person making the election. | |
9.03 | A person entitled to make an election pursuant to the foregoing Sub-Article shall, pending election, have the right to receive (and to give a good discharge for) all monies payable in respect of the share, the same right (if any) as the holder to call for the redemption of the share, and the same right as the holder to enter into an agreement for the purchase of the share by the Company, but such person shall not be entitled to receive notice of, or attend or vote at, general meetings or class meetings of the Company nor, save as aforesaid, to any of the rights or privileges of a member; and the Directors may at any time give him notice requiring election pursuant to the foregoing Sub-Article and, if there is no election within ninety days of the notice, the Directors may thereafter withhold all monies payable in respect of the share until such time as the election is made. |
- 6 -
10. | REDEMPTION OF SHARES | |
10.01 | Subject to the Statute, the Company is hereby authorised to issue shares which are to be redeemed or are liable to be redeemed at the option of the Company or the holder; but, save for shares declared to be redeemable by the Memorandum of Association, the Directors shall not issue redeemable shares without the sanction of an ordinary resolution. | |
10.02 | The Company is hereby authorised to make payments in respect of the redemption of its shares out of capital or out of any other account or fund which can be authorised for this purpose in accordance with the Statute. | |
10.03 | Unless fixed by the ordinary resolution sanctioning its issue the redemption price of a redeemable share, or the method of calculation thereof, shall be fixed by the Directors at or before the time of issue; | |
10.04 | Unless otherwise provided or directed by the ordinary resolution sanctioning the issue of the shares concerned: |
(a) | every share certificate representing a redeemable share shall indicate that the share is redeemable; | ||
(b) | in the case of shares redeemable at the option of the holder a redemption notice from the holder may not be revoked without the agreement of the Directors; | ||
(c) | at the time or in the circumstances specified for redemption the redeemed shares shall be cancelled and shall cease to confer on the holder any right or privilege, without prejudice to the right to receive the redemption price, which price shall become payable so soon as it can with due dispatch be calculated, but subject to surrender of the relevant share certificate for cancellation (and reissue in respect of any balance); | ||
(d) | the redemption price may be paid in any manner authorised by these Articles for the payment of dividends; | ||
(e) | a delay in payment of the redemption price shall not affect the redemption but, in the case of a delay of more than thirty days, interest shall be paid for the period from the due date until actual payment at a rate which the Directors, after due enquiry, estimate to be representative of the rates being offered by class A banks in the Cayman Islands for thirty day deposits in the same currency; | ||
(f) | the Directors may exercise as they think fit the powers conferred on the Company by Section 37(5) of the Statute (payment out of capital) but only if and to the extent that the redemption could not otherwise be made (or not without making a fresh issue of shares for this purpose); | ||
(g) | subject as aforesaid, the Directors may determine as they think fit all questions |
- 7 -
that may arise concerning the manner in which the redemption of the shares shall or maybe effected. |
10.05 | No share may be redeemed unless it is fully paid-up. | |
11. | PURCHASE OF SHARES BY THE COMPANY | |
11.01 | Subject to the Statute, and with the sanction of an ordinary resolution authorising the manner and terms of purchase, the Directors may on behalf of the Company purchase any share of the Company (including a redeemable share) by agreement with the holder or pursuant to the terms of issue of the share, and may make payments in respect of such purchase out of capital or out of any other account or fund which can be authorised for this purpose in accordance with the Statute. | |
11.02 | Shares purchased by the Company shall be noted in the Companys register as cancelled and shall cease to confer any right or privilege on the seller. | |
11.03 | No share may be purchased by the Company unless it is fully-paid-up. | |
12. | CALLS ON SHARES AND FORFEITURE | |
12.01 | If a share has been issued partly paid (or nil paid), then, subject to the terms of issue, the Directors may from time to time make calls upon the holder in respect of the monies unpaid on the share, whether in respect of the nominal value or the premium (if any), and, subject as aforesaid: |
(a) | the holder shall be given written notice of the call; | ||
(b) | the date for payment of the call shall be not less than thirty days after the date of the notice of call; | ||
(c) | payment of the call shall be made at the Registered Office or such other place as shall be specified in the notice of call; | ||
(d) | a call may be made payable by instalments; | ||
(e) | a call maybe revoked or postponed; | ||
(f) | the Directors may differentiate between holders of different shares as to the time or amount of calls; | ||
(g) | if full payment pursuant to a call is not made on or before the due date, interest may in the Directors discretion be charged at a rate not exceeding ten percent per annum; | ||
(h) | if payment pursuant to a call is not made on or before the due date, the Directors may, in addition to interest under the foregoing paragraph, require the holder to |
- 8 -
indemnify the Company for any expenses incurred by reason of non-payment, including expenses incurred in enforcing the Companys rights under these Articles; |
(i) | the joint holders of a share shall be jointly and severally liable for all calls (and interest and other monies due in respect of calls) on the share; | ||
(j) | a holder may not require the Company to make a call on his shares or, in the absence of a call, pay up any amount unpaid on his shares, but the Directors may accept advances from the holder to be applied against future calls on such terms as to interest and repayment as the Directors may determine. |
12.02 | Any sum which by the terms of issue of a share becomes payable upon issue or at any fixed date, whether in respect of the nominal value of the share or by way of premium, shall for the purposes of these Articles be deemed to have been duly called and to be immediately payable and, in the event of non-payment, all the provisions of these Articles as to the payment of interest, forfeiture or otherwise shall apply as if such sum had become payable by virtue of a call duly made and notified. | |
12.03 | If full payment pursuant to a call is not made on or before the due date, the Directors may at any time thereafter give the holder a forfeiture notice stating the amount which remains unpaid (including any accrued interest and expenses owed to the Company by reason of non-payment) and appointing the day, not less than fourteen days after the date of the forfeiture notice, on which the shares shall be forfeited unless payment of the stated amount has by then been paid in full. If the stated amount has not by then been paid in full the shares shall be forfeited accordingly. | |
12.04 | In the event of forfeiture the holder shall cease to be a member in respect of the forfeited shares and shall cease to have any right, title or interest in or to the shares but shall remain liable for all amounts due before forfeiture; and the Company may enforce such liability without making any allowance for the value of the shares at the time of forfeiture. | |
12.05 | A forfeited share shall become the property of the Company and may be sold, re-allotted or otherwise disposed of for the benefit of the Company to such person or persons, upon such terms and in such manner as the Directors think fit. Without limiting the foregoing generality, the Directors may determine whether and to what extent the share shall be treated as paid-up by payments made, or credited as made, thereon prior to forfeiture. | |
12.06 | At any time before the sale, re-allotment or other disposal of a forfeited share the Directors may cancel the forfeiture on such terms as they think fit. | |
12.07 | A note in the Register or a certificate under the hand of the Secretary that a share has been forfeited at a stated time shall be conclusive evidence of those facts in favour of any person to whom the share is sold, re-allotted or disposed of, and his title to the share shall not be affected by any irregularity or invalidity in the proceedings in reference to the |
- 9 -
(a) | consolidate and divide all or any of its share capital into shares of larger amount than its existing shares; |
- 10 -
(b) | subdivide its shares or any of them into shares of an amount smaller than that fixed by the Memorandum of Association; or | ||
(c) | cancel shares which at the date of the passing of the resolution have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled or, in the case of shares without par value, diminish the number of shares into which its capital is divided. |
14.03 | Subject to the Statute, the Company may from time to time by special resolution reduce its share capital in any way or alter any conditions of its Memorandum of Association relating to share capital. | |
15. | ALTERATION OF REGISTERED OFFICE, NAME AND OBJECTS | |
15.01 | Subject to the Statute, the Company may by resolution of its Directors change the location of its Registered Office. | |
15.02 | Subject to the Statute, the Company may from time to time by special resolution change its name or alter its objects or make any other alteration to its Memorandum of Association for which provision has not been made elsewhere in these Articles. | |
16. | GENERAL MEETINGS |
16.01 | (a) | The Company shall in each year hold a general meeting as its Annual General Meeting. The time and place of Annual General Meetings shall be determined by the Directors and, if no other time and place is prescribed by them, it shall be held at the registered office on the second Wednesday in December of each year at ten oclock in the morning. |
(b) | At these meetings the Directors shall be elected as provided for in these Articles, the annual report of the Directors shall be presented and the general business of the Company transacted. |
16.02 | General meetings other than Annual General Meetings shall be called Extraordinary General Meetings. The Directors may call or authorise the calling of an Extraordinary General Meeting whenever they think fit. | |
17. | REQUISITION OF GENERAL MEETINGS | |
17.01 | The Directors shall call an Extraordinary General Meeting on the requisition of members holding at the date of the requisition not less than fifty-one per cent of the issued shares of the Company for the time being carrying the right to vote at general meetings of the Company. To be effective the requisition shall state the objects of the meeting, shall be in writing, signed by the requisitionists, and shall be deposited at the Registered Office. The requisition may consist of several documents in like form each signed by one or more requisitionists. | |
17.02 | If the Directors do not within twenty-one days from the date of the requisition duly |
- 11 -
proceed to call an Extraordinary General Meeting, the requisitionists may themselves convene an Extraordinary General Meeting; but any meeting so called shall not be held more than ninety days after the requisition. An Extraordinary General Meeting called by requisitionists shall be called in the same manner, as nearly as possible, as that in which general meetings are to be called by the Directors. |
18. | NOTICE OF GENERAL MEETINGS | |
18.01 | At least five clear days notice in writing shall be given of a general meeting to all members entitled as at the record date for the notice provided that: |
(a) | an Extraordinary General Meeting may be called by shorter notice (but not shorter than two clear days) if so agreed by a member or members (or their proxies or representatives) holding in the aggregate, as at the record date for the meeting, shares conferring the right to cast seventy-five percent of the votes that could be cast on a poll if all members so entitled attended the meeting; | ||
(b) | an Annual General Meeting or an Extraordinary General Meeting may be held without notice and without observing any of the requirements or provisions of these Articles concerning general meetings if so agreed by all the members (or their proxies or representatives) entitled as at the date of the meeting to attend and vote at general meetings; |
and agreement for the purposes of the foregoing paragraphs (a) or (b) may be reached before, during or within thirty days after the meeting concerned. | ||
18.02 | The notice of a general meeting shall specify: |
(a) | the place, the day and the hour of the meeting and, if different, the record date for determining members entitled to attend and vote; and | ||
(b) | the general nature of any special business to be conducted at the meeting; and for this purpose all business shall be deemed special which is transacted at an Extraordinary General Meeting, and also all business that is transacted at an Annual General Meeting with the exception of the consideration and approval of the report of the Directors, the financial statements of the Company and the report of the Auditors (if any), the election or re-election of the Directors and the election or re-election of the Auditors and approval of their remuneration. |
18.03 | The Directors and the Auditors, if any, shall be entitled to receive notice of, and to attend and speak at, any general meeting of the Company. | |
18.04 | The accidental omission to give notice to, or the non-receipt of notice by, any person entitled to receive notice shall not invalidate the proceedings at any general meeting. |
- 12 -
19. | PROCEEDINGS AT GENERAL MEETINGS | |
19.01 | No business shall be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business; a quorum shall be such members present in person or by proxy as represent one-third of the issued shares of the Company carrying the right to vote at the meeting calculated in accordance with Article 6.05. | |
19.02 | If within half an hour from the time appointed for a meeting a quorum is not present, the meeting, if convened upon the requisition of members, shall be dissolved and in any other case it shall stand adjourned to the same day in the next week at the same time and place or to such other time or such other place as the Directors may determine and, if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting, the member or members present shall be a quorum. | |
19.03 | The chairman, if any, of the board of Directors shall preside as chairman at every general meeting of the Company; or, if there is no such chairman or if he shall not be present at the time appointed for the meeting, or if he is unwilling to act, the Directors present shall elect one of their number to be chairman of the meeting; or, if no Directors are present at the time appointed for the meeting or no Director is willing to act as chairman, then the members present shall choose one of their number to be chairman of the meeting. | |
19.04 | The chairman may, with the consent of any general meeting duly constituted, and shall if so directed by the meeting, adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting except business which might lawfully have been transacted at the meeting from which the adjournment took place. When a meeting is adjourned for thirty days or more, notice of the adjourned meeting shall be given as in the case of an original meeting, save as aforesaid it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned general meeting. | |
19.05 | At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands unless before or on the declaration of the result of the show of hands a poll is demanded by the chairman or any member entitled to vote, present in person or by proxy. Unless a poll is so demanded, a declaration by the chairman that a resolution has on a show of hands been carried, or carried unanimously, or by a particular majority, or lost, and an entry to that effect in the book containing the minutes of the proceedings of the Company shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against such resolution. | |
19.06 | If any votes are counted which ought not to have been counted, or which might have been rejected, the error shall not vitiate the resolution unless pointed out at the same meeting, or at any adjournment thereof, and not in that case unless in the opinion of the chairman (whose decision shall be final and conclusive) it is of sufficient magnitude to vitiate the resolution. | |
19.07 | If a poll is duly demanded, it shall be taken in such manner as the chairman directs. Without limiting the foregoing generality, the chairman may direct the use of ballot or |
- 13 -
voting papers, may appoint scrutineers and, subject to the next Sub-Article, may adjourn the meeting to some other time or place for the purpose of conducting the poll or declaring its result. The result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. |
19.08 | A poll demanded on the election of a chairman and a poll demanded on a question of adjournment shall be taken forthwith. In any other case the poll shall be taken not more than thirty days after the date of the meeting or adjourned meeting at which the poll was demanded. | |
19.09 | The demand for a poll shall not prevent the continuance of a meeting for the transaction of any business other than the question on which the poll has been demanded. | |
19.10 | The demand for a poll may be withdrawn at any time before the taking of the poll, but in that case the chairman or any other member entitled to vote may then demand a poll. | |
19.11 | In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place or at which the poll is demanded shall be entitled to a second or casting vote. | |
20. | VOTES OF MEMBERS | |
20.01 | Subject to any special rights or restrictions for the time being attached to any shares or any class of shares, every member as at the record date who is present in person or by proxy shall have: |
(a) | on a show of hands one vote; and | ||
(b) | on a poll one vote for each whole share (and a corresponding fraction of a vote for every fraction of a share) registered in his name in the Register as at the record date, provided that a partly paid share shall confer a fraction of a vote according to the proportion borne by the amount paid-up on the share to the total issue price (including share premium, if any). |
20.02 | In the case of joint holders the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names of the holders stand in the Register. | |
20.03 | A member shall not be entitled to attend or vote at general meetings if and as long as any call or other sum in respect of shares is presently payable by him. | |
20.04 | Subject to production of such evidence as the Directors may require, a member of unsound mind, or in respect of whom an order has been made by any court in the Cayman Islands or elsewhere having jurisdiction in lunacy may vote on a show of hands or on a poll by his committee, receiver, curator bonis, guardian or other person appointed by the court, and any such committee, receiver, curator bonis, guardian or other person may vote by proxy. |
- 14 -
20.05 | No objection shall be raised to the qualification of any voter except at the general meeting at which the vote objected to is given or tendered or at any adjournment thereof, and every vote not disallowed at such general meeting or adjournment 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. | |
20.06 | On a poll a member entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses in the same way. | |
20.07 | A corporation, whether formed in the Cayman Islands or elsewhere, which is a member may authorise such person as it thinks fit to act as its representative at any general meeting of the Company and the person so authorised shall be entitled to exercise the same voting and other powers on behalf of the corporation which he represents as the corporation could exercise if it were an individual member of the Company. A corporation whose representative is present at a meeting shall itself be deemed to be present in person at the meeting and shall be counted towards the quorum. Nothing in this Article shall be construed as preventing a corporation from appointing a proxy. | |
21. | PROXIES | |
21.01 | The appointment of a proxy shall be by written instrument under the hand of the appointor or his attorney duly authorised in writing or, if the appointor is a corporation, either under the corporations seal or under the hand of an officer or attorney duly authorised. | |
21.02 | A proxy need not be a member of the Company. | |
21.03 | The instrument appointing a proxy may be in any usual or common form or otherwise acceptable to the chairman of the meeting for which the instrument is first presented. | |
21.04 | The instrument appointing a proxy may contain restrictions or directions as to the manner in which, or the matters upon which, the proxy may vote, but subject thereto the proxy may vote on any matter in such manner as the proxy thinks fit and may exercise the same powers as his appointor could exercise if present, including the power to demand a poll. | |
21.05 | The instrument appointing a proxy may be expressed to be for a particular meeting or particular meetings or to be effective generally until revoked. An appointment for a particular meeting or meetings shall be presumed, in the absence of clear provision to the contrary, to extend to any adjournment of such meeting or meetings. | |
21.06 | The instrument appointing a proxy (and any power of attorney or other authority under which it is signed, or a notarially certified copy of such authority) shall be deposited at the Registered Office or at such other place as is specified for that purpose in the notice of meeting; and such deposit shall be made no later than the time for holding the meeting, provided that the Directors may in giving notice of the meeting stipulate that instruments |
- 15 -
of proxy shall be deposited up to twenty-four hours before the time for holding the meeting. Such deposit may be made by telecopier transmission, but may be disallowed at or before the meeting by the Directors or the chairman of the meeting if in his or their opinion there are material doubts as to authenticity or content. The chairman of the meeting may at his discretion direct that the deposit of an instrument of proxy (or other requisite document) shall be deemed to have been duly made, if satisfied that the instrument of proxy duly signed (or other requisite document) is in the course of transmission to the Company. | ||
21.07 | A proxy shall have no powers, as such, at any meeting at which his appointor is present in person or, being a corporation, by a duly authorised representative. If two or more proxies are present at a meeting and in accordance with their terms of appointment seek to vote on the same matter in respect of the same shares, the chairman shall in his absolute discretion decide which vote to accept and which vote or votes to disallow, or he may disallow all such votes. | |
21.08 | The Directors may at the expense of the Company send to the members instruments of proxy (with or without prepaid postage for their return) for use at any general meeting, either in blank or (but only if such instruments are sent to all members entitled to attend and vote) nominating one or more Directors or other persons. | |
21.09 | All resolutions passed at a general meeting shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of a proxy or that the appointment had been revoked or otherwise terminated prior to the meeting, be as valid as if every such proxy had been and remained duly appointed. | |
22. | CIRCULAR RESOLUTIONS OF THE MEMBERS | |
22.01 | A resolution in writing, in one or more counterparts, signed by all the members for the time being entitled to receive notice of and attend and vote at general meetings (or, being corporations, by their duly authorised representatives) shall be as valid and effective as if the same had been passed at a general meeting of the Company duly called and held, and shall satisfy any requirement of these Articles for a resolution to be passed by the Company in general meeting. | |
23. | CLASS MEETINGS | |
23.01 | All the provisions of these Articles regulating Extraordinary General Meetings (as to call, requisition, notice, proceedings, votes, proxies, circular resolutions and otherwise) apply equally to class meetings save only that references to members shall be construed as references to members holding shares of the relevant class. | |
24. | APPOINTMENT OF DIRECTORS | |
24.01 | (a) | There shall be a Board of Directors consisting of not less than one or more than fifteen persons (exclusive of Alternate Directors) PROVIDED HOWEVER that the Company may from time to time by special resolution increase or reduce the limits in the number of Directors. |
- 16 -
(b) | The Board of Directors shall be divided into three groups designated Group I, Group II and Group III (which at all times shall be as nearly equal in number as possible); | ||
(c) | The initial classification of the Directors into Group I, Group II and Group III shall be for the Directors in their absolute discretion; | ||
(d) | The initial term of office of the Group III Directors shall expire at the 1999 Annual General Meeting; the initial term of office of the Group II Directors shall expire at the 2000 Annual General Meeting; the initial term of office of the Group I Directors shall expire at the 2001 Annual General Meeting; | ||
(e) | Subject to initial classification and term of office as prescribed in this Article, at each Annual General Meeting Directors elected to succeed Directors whose terms expire shall be elected for a term of office to expire at the third succeeding Annual General Meeting after their election. |
24.02 | There shall be no shareholding qualification for Directors unless prescribed by special resolution. | |
24.03 | The first Directors shall be appointed in writing by the subscribers of the Memorandum of Association or a majority of them. | |
24.04 | The Directors may from time to time appoint any person to be a Director, either to fill a casual vacancy or as an addition to the existing Directors, subject to any upper limit on the number of Directors prescribed pursuant to this Article and subject to his designation as a Group I, Group II or Group III Director. | |
24.05 | The Company may by special resolutions remove any Director before the expiration of his term of office and may by ordinary resolution appoint another person in his stead; the person so appointed shall be subject to retirement at the same time as if he had become a Director on the day on which the Director in whose place he is appointed was last elected a Director. | |
24.06 | Without prejudice to other provisions of these Articles for the retirement or removal of Directors, the office of a Director shall be vacated: |
(a) | if he resigns as Director by notice to the Company in writing signed by him; | ||
(b) | if he dies, becomes bankrupt or makes any arrangement or composition with his creditors generally; or | ||
(c) | if he becomes of unsound mind or an order for his detention is made under the Mental Health Law or any analogous law of a jurisdiction outside the Cayman Islands. |
- 17 -
25. | REMUNERATION OF DIRECTORS | |
25.01 | The remuneration of the Directors shall be in such amount or at such rate, and upon such terms as the Directors may from time to time determine. Special remuneration may be agreed with or given to any Director who has undertaken, or is required to undertake, any special work, service or mission beyond the ordinary routine work of a Director. | |
25.02 | An Alternate Director shall not be remunerated as such by the Company provided that he may, if the Directors think fit, be remunerated for any special work, service or mission beyond the ordinary routine work of a Director or Alternate Director. | |
26. | TRANSACTIONS WITH DIRECTORS | |
26.01 | A Director may hold any other executive or non-executive office or place of profit in or under the Company, other than the office of Auditor, on such terms as to tenure, remuneration, indemnity and otherwise as the Directors may determine. | |
26.02 | A Director may act by himself or his firm in a professional capacity for the Company and shall be entitled to the same remuneration, indemnity and other privileges as if he were not a Director. | |
26.03 | A Director may be a member or director or hold any other executive or non-executive office or place of profit in or under any company or association promoted by the Company or in which the Company may be interested or associated, and may exercise and enjoy the rights, privileges and benefits of any such position without being accountable in any way to the Company. | |
26.04 | No person shall be disqualified from the office of Director by, or be prevented by such office from, contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such contract (or any other contract or arrangement entered into by or on behalf of the Company in which a Director shall be in any way interested) be liable to be avoided, nor shall any Director be liable to account to the Company for any profit realised by any such contract or arrangement; but the nature of his interest shall be disclosed by him at the meeting of the Directors at which the question of entering into the contract or arrangement is first taken into consideration or, if the Director was not at that time interested in the proposed contract or arrangement, then at the next meeting of the Directors held after he becomes so interested. | |
26.05 | A Director may vote in respect of any contract, arrangement or other matter which may be proposed, notwithstanding that he has an interest therein provided that the nature of his interest shall have been disclosed to the Directors prior to the Directors resolution. | |
26.06 | For the avoidance of doubt it is declared that a Director shall be regarded as having an interest in any matter in which he has a duty conflicting with his duty to the Company, and also in any proposal to ratify a contract or transaction entered into by him in the name or on behalf of the Company prior to its registration. |
- 18 -
26.07 | A general notice that a Director is a shareholder, director or officer of, or otherwise interested in, a specified company or association and is to be regarded as interested in any transaction with such company or association shall be a sufficient disclosure for the purposes of this Article and thereafter it shall not be necessary to give any further notice relating to a particular transaction with that company or association. | |
26.08 | The Company may from time to time by special resolution impose and vary rules more or less restrictive of Directors having conflicting interests. | |
26.09 | The provisions of this Article concerning Directors apply equally to Alternate Directors. For the purposes of this Article an interest of a Director shall be deemed to be an interest of his Alternate Director, and vice versa. | |
27. | ALTERNATE DIRECTORS AND PROXIES | |
27.01 | A Director may at any time appoint any person (including another Director) to be his Alternate Director and may at any time terminate such appointment. An appointment and a termination of appointment shall be by notice in writing signed by the Director and deposited at the Registered Office or delivered at a meeting of the Directors. | |
27.02 | The appointment of an Alternate Director shall determine on the happening of any event which, if he were a Director, would cause him to vacate such office or if his appointor ceases for any reason to be a Director. | |
27.03 | An Alternate Director shall be entitled to receive notices of meetings of the Directors and shall be entitled to attend and vote as a Director at any such meeting at which his appointor is not personally present and generally at such meeting to perform all the functions of his appointor as a Director; and for the purposes of the proceedings at such meeting these Articles shall apply as if he (instead of his appointor) were a Director, save that he may not himself appoint an Alternate Director or a proxy. | |
27.04 | If an Alternate Director is himself a Director or attends a meeting of the Directors as the Alternate Director of more than one Director, his voting rights shall be cumulative. | |
27.05 | Unless the Directors determine otherwise, an Alternate Director may also represent his appointor at meetings of any committee of the Directors on which his appointor serves; and the provisions of this Article shall apply equally to such committee meetings as to meetings of the Directors. | |
27.06 | If so authorised by express provision in his notice of appointment, an Alternate Director may join in a circular resolution of the Directors adopted pursuant to these Articles and his signature of such resolution shall be as effective as the signature of his appointor. | |
27.07 | Save as provided in these Articles an Alternate Director shall not, as such, have any power to act as a Director or to represent his appointor and shall not be deemed to be a Director for the purposes of these Articles. |
- 19 -
27.08 | A Director who is not present at a meeting of the Directors, and whose Alternate Director (if any) is not present at the meeting, may be represented at the meeting by a proxy duly appointed, in which event the presence and vote of the proxy shall be deemed to be that of the Director. All the provisions of these Articles regulating the appointment of proxies by members shall apply equally to the appointment of proxies by Directors. | |
28. | PROCEEDINGS OF DIRECTORS | |
28.01 | A meeting of the Directors for the time being at which a quorum is present shall be competent to exercise all or any of the powers and discretion by or under these Articles for the time being vested in or exercisable by the Directors generally. | |
28.02 | Except as otherwise provided by these Articles, the Directors shall meet together for the dispatch of business, convening, adjourning and otherwise regulating their meetings as they think fit. | |
28.03 | A Director may, and on the request of a Director the Secretary shall, at any time summon a meeting of the Directors. Notice thereof shall be given to each Director and Alternate Director in writing or by telephone or orally. Not less than five clear days notice shall be given save that all the Directors (or their Alternate Directors) may waive notice of the meeting at, before or after the meeting is held. | |
28.04 | A meeting of the Directors may be held, and any Director may participate in a meeting, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting are capable of hearing each other; and such participation shall be deemed to constitute presence in person at the meeting. | |
28.05 | The quorum necessary for the transaction of business at a meeting of the Directors may be fixed by the Directors and, unless so fixed at any other number, shall be at least half the number of persons comprising the Board of Directors. | |
28.06 | For the avoidance of doubt it is declared that an Alternate Director shall not be entitled to attend or vote at a meeting of the Directors or be counted towards the quorum if his appointor be present; and the proxy of a Director shall not be so entitled or counted if either the appointing Director or his Alternate Director be present. | |
28.07 | The Directors may at any time elect a chairman and, if they think fit, a deputy chairman and may determine the period for which they respectively are to hold office. Subject to any such determination, the Directors may at any time remove a chairman or deputy chairman from office. A chairman or deputy chairman shall automatically cease to hold office if for any reason he ceases to hold office as a Director. | |
28.08 | Questions arising at a meeting of the Directors shall be decided by a majority of the votes cast. In the case of an equality of votes, the chairman shall have a second or casting vote. |
- 20 -
28.09 | 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 minimum number of Directors or as the necessary quorum for meetings of Directors, the continuing Directors may act for the purpose of increasing the number of Directors to the requisite number, or of summoning a general meeting of the Company, but for no other purpose. | |
28.10 | All resolutions passed and other acts done by any meeting of the Directors or of a committee of Directors shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any Director, Alternate Director or proxy, or that they or any of them were disqualified or had otherwise ceased to hold office, be as valid as if every such person had been duly appointed and qualified and continued to hold the office or position of Director, Alternate Director or proxy, as the case may be. This Article shall apply equally to a case in which there was no appointment as to the case in which there was a defective appointment. | |
28.11 | A Director who is present at a meeting of the Directors at which action on any matter is taken shall be presumed to have assented to the action unless his dissent shall be entered in the minutes of the meeting or he shall file his written dissent with the person acting as the secretary of the meeting before the adjournment thereof or shall send his written dissent to the Registered Office immediately after the meeting, provided that this right of dissent shall not apply in the case of a Director who voted in favour of the action. | |
28.12 | A resolution in writing, in one or more counterparts, signed by all the Directors shall be as valid and effectual as if it had been passed at a meeting of the Directors duly called and held. | |
29. | MINUTES AND REGISTERS | |
29.01 | In accordance with the Statute the Directors shall cause minutes to be kept of all resolutions and proceedings of members, whether at general meetings, class meetings or otherwise, and of Directors or managers (if any), or committees of Directors (if any), whether at meetings or otherwise. Such minutes shall be kept in writing at the Registered Office or at such other location as the Directors may determine. | |
29.02 | The minutes of a meeting, whether of the members or the Directors or a committee of the Directors, when signed by the person acting as the chairman of the meeting or by the person acting as the chairman of the next following meeting, shall until the contrary be proved be accepted as conclusive evidence of the matters stated in the minutes. | |
29.03 | The Directors shall cause to be kept at the Registered Office the register of Directors and officers and the register of mortgages and charges required by the Statute. Alternate Directors shall be entered in the register of Directors and officers. |
- 21 -
30. | POWERS OF DIRECTORS | |
30.01 | The business of the Company shall be managed by the Directors, who may exercise all such powers of the Company as are not by the Statute or these Articles required to be exercised by the Company in general meeting, subject nevertheless to any regulations, not inconsistent with the Statute or these Articles, prescribed by the Company in general meeting. No such regulations made by the Company in general meeting may invalidate any prior act of the Directors. This Sub-Article is without prejudice to the provisions of these Articles permitting delegation by the Directors. | |
30.02 | Notwithstanding that the Statute or the Memorandum of Association may permit the Company to pursue objects or exercise powers which are charitable or benevolent or otherwise independent of the financial interests of the Company itself, the Directors shall not without the sanction of a special resolution pursue any such objects or exercise any such powers, provided that: |
(a) | this Sub-Article does not apply to the declaration or payment of dividends, the redemption or purchase of shares or the conferring of other benefits upon members in accordance with these Articles; | ||
(b) | The Directors on behalf of the Company may pay or procure the payment of gratuities, pensions and other benefits to persons who are or were officers or employees of the Company or any associated company, or widows or other dependants of such persons, whether or not the Company has any legal obligation to do so; | ||
(c) | The Directors may establish, maintain and fund a scholarship programme for the education and advancement of persons meeting such qualifications as the Directors may determine; | ||
(d) | this Sub-Article does not apply to an action which, though it may in itself be gratuitous, is considered by the Directors to be in the financial interests of the Company; | ||
(e) | if there is any reasonable doubt as to whether an action is prohibited by this Sub-Article, the Directors decision, if made in good faith, shall be conclusive. |
30.03 | The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital or any part thereof by way of fixed charge, floating charge or other form of encumbrance, and to issue debentures, debenture stock and other securities whether outright or as security for any debt, liability or obligation of the Company or of any third party. In the case of a charge over the uncalled capital of the Company or any part of it, the Directors may delegate to the charge holder (or any person acting as his trustee or appointed by him) the power to make calls on members in respect of such uncalled capital and to sue in the name of the Company or otherwise for the recovery of monies becoming due in respect of calls and to give valid receipts for such monies; and such powers shall be assignable if expressed to be so. |
- 22 -
30.04 | All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for monies paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed in such manner as the Directors may from time to time determine. | |
31. | SECRETARY | |
31.01 | The Secretary shall, and one or more assistant secretaries may, be appointed by the Directors for such terms, at such remuneration and upon such conditions as the Directors think fit. Notwithstanding the terms or conditions of appointment, the Secretary and any assistant secretary may at any time be removed from office by the Directors. | |
31.02 | Subject to any contrary term or condition of his appointment, an assistant secretary may exercise or perform any task or power conferred upon the Secretary by the Statute, by these Articles or by resolution of the Directors, but shall comply with any proper direction which may be given by the Secretary. | |
31.03 | A provision of the Statute or of these Articles requiring or authorising anything to be done by or to a Director and the Secretary shall not be satisfied by its being done by or to the same person acting both as Director and as or in place of the Secretary. | |
32. | COMMITTEES, OFFICERS, ATTORNEYS AND MANAGERS | |
32.01 | The Directors may delegate any of their powers and discretion to committees consisting of such of their number as the Directors think fit and may at any time revoke any such delegation or discharge any such committee either wholly or in part. Every committee so formed shall in the exercise of the powers and discretions delegated to it conform to any regulations that may from time to time be imposed upon it by the Directors. All acts done by any such committee in conformity with such regulations and in fulfillment of the purposes for which it is appointed, but not otherwise, shall have the like force and effect as if done by the Directors. Subject to any regulations made by the Directors for this purpose, the meetings and proceedings of such committees shall be governed by the provisions of these Articles concerning the meetings and proceedings of the Directors, including provisions for circular resolutions. | |
32.02 | The Directors may on behalf of the Company appoint from their own number or otherwise such officers to perform such duties, to exercise such powers and discretions and upon such terms as the Directors think fit. | |
32.03 | The Directors may on behalf of the Company by power of attorney under the Seal appoint any person or 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 and discretion (not exceeding those vested in or exercisable by the Directors) and for such period and subject to such conditions as the Directors may think fit; and any such attorney, if so authorised, may execute deeds and instruments on behalf of the Company |
- 23 -
under his own hand and seal which shall bind the Company and have the same effect as if under the Seal of the Company. | ||
32.04 | The Directors may on behalf of the Company appoint such managers, custodians and agents with such duties, powers, and discretions and upon such terms as the Directors think fit. | |
32.05 | Any delegation by the Directors pursuant to this Article may be on terms permitting sub-delegation. | |
33. | SEAL | |
33.01 | The Seal shall only be used by the authority of the Directors or of a committee of the Directors authorised by the Directors in that behalf; and, until otherwise determined by the Directors, the Seal shall be affixed in the presence of a Director or the Secretary or an assistant secretary or some other person authorised for this purpose by the Directors or the committee of Directors. | |
33.02 | Notwithstanding the foregoing Sub-Article the Seal may without further authority be affixed by way of authentication to any document required to be filed with the Registrar of Companies in the Cayman Islands, and may be so affixed by any Director, Secretary or assistant secretary of the Company or any other person or institution having authority to file the document as aforesaid. | |
33.03 | The Company may have one or more duplicate Seals, as permitted by the Statute; and, if the Directors think fit, a duplicate Seal may bear on its face the name of the country, territory, district or place where it is to be used. | |
34. | DIVIDENDS AND RESERVES | |
34.01 | Subject to these Articles and subject to any direction of the Company in general meeting, the Directors may on behalf of the Company declare and pay dividends (including interim dividends) at such times and in such amounts as they think fit. For the avoidance of doubt it is declared that, subject as aforesaid, the Directors may, if it appears to them fair and equitable to do so, fix as the record date for a dividend a date prior to the declaration of the dividend. | |
34.02 | Dividends may be declared and paid out of the profits of the Company, realised or unrealised, or from any reserve set aside from profits which the Directors determine is no longer needed, or not in the same amount. With the sanction of an ordinary resolution dividends may also be declared and paid out of share premium account or any other fund or account which can be authorised for this purpose in accordance with the Statute. | |
34.03 | The Directors may before declaring a dividend set aside such sums as they think fit as a reserve or reserves for any proper purpose. Pending application, such sums may be employed in the business of the Company or invested, and need not be kept separate from |
- 24 -
other assets of the Company. The Directors may also, without placing the same to reserve, carry forward any profit which they decide not to distribute. | ||
34.04 | Subject to these Articles and subject to any special dividend rights or restrictions for the time being attached to any shares or class of shares, if a dividend is declared: |
(a) | every share shall confer on the holder as at the record date the right to participate in the dividend; | ||
(b) | the dividend shall be declared and paid according to the amounts (other than share premium) paid up on shares as at the record date or, if the Company is an exempted company and its shares have no par value, then on an equal per share basis; |
34.05 | The Directors may deduct from any dividend all sums of money presently payable by the holder to the Company, whether in respect of shares or otherwise; and the Directors may retain any dividend on shares over which the Company has a lien for any obligation presently due. | |
34.06 | Any dividend or other monies payable in respect of shares may be paid by cheque or warrant sent through the post directed to the registered address of the holder or, in the case of joint holders, the holder who is first named in the Register in respect of the shares; but this Sub-Article is without prejudice to any other method of payment which the Directors may think appropriate and, in the case of joint holders, payment to any one or more of them shall be a good discharge to the Company. | |
34.07 | No dividend shall bear interest against the Company. | |
34.08 | With the sanction of an ordinary resolution of the Company (or, as regards a dividend payable in respect of a class of shares, an ordinary resolution passed at a class meeting), the Directors may determine that a dividend shall be paid wholly or partly by the distribution of specific assets (which may consist of the shares or securities of any other company) and may settle all questions concerning such distribution. Without limiting the foregoing generality the Directors may fix the value of such specific assets, may determine that cash payments shall be made to some members in lieu of specific assets and may vest any such specific assets in trustees on such terms as the Directors think fit. | |
34.09 | With the sanction of an ordinary resolution of the Company (or, as regards a dividend payable in respect of a class of shares, an ordinary resolution passed at a class-meeting), the Directors may determine that: |
(a) | the persons entitled to participate in the dividend shall have a right of election to accept shares of the Company credited as fully paid in satisfaction of all or (if the Directors so specify or permit) part of their dividend entitlement; or | ||
(b) | a dividend shall be satisfied in whole or specified part by an issue of shares of the |
- 25 -
Company credited as fully paid up, subject to a right of election on the part of persons entitled to participate in the dividend to receive their dividend entitlement wholly or (if the Directors so permit) partly in cash; |
and in either event the Directors may determine all questions that arise concerning the right of election, notification thereof to members, the basis and terms of issue of shares of the Company and otherwise. |
34.10 | (a) | The Directors shall have the power to cease sending dividend warrants, if such warrants have been returned undelivered or left uncashed, provided that such power shall not be exercised until either such warrants have been so returned or left uncashed on two consecutive occasions or, following one such occasion, reasonable enquiries have failed to establish any new address of the holder; |
(b) | Any dividend that has remained unclaimed for twelve years from the date when it became due for payment shall, if the Directors so resolve, be forfeited and cease to remain owing by the Company; | ||
The Directors shall have the power to sell the shares (which shall include the power for the Company to purchase such shares) of any holder who is untraceable, provided that such power shall not be exercisable unless: |
(i) | during a period of not less than 12 years three dividends in respect of the shares in question have become payable and no dividend during that period has been claimed; and | ||
(ii) | on or after the expiry of such period the Company has given notice by such method as the Directors shall deem fit of its intention to sell the shares within the time frame stated therein, and no response is received, save that the Directors in their absolute discretion may dispense with such notice, |
- 26 -
(a) | all sums of money received or expended by the Company and the matters in respect of which the receipt or expenditure takes place; | ||
(b) | all sales and purchases of goods by the Company; | ||
(c) | the assets and liabilities of the Company; |
and proper books of account shall not be deemed to be kept with respect to the matters aforesaid if there are not kept such books as are necessary to give a true and fair view of the state of the Companys affairs and to explain its transactions. Such books shall be kept at such place or places as the Directors determine. | ||
37.02 | The Directors shall from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of members not being Directors; and no member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as authorised by the Directors or by the Company in general meeting. | |
37.03 | Subject to any waiver by the Company in general meeting of the requirements of this Sub-Article, the Directors shall lay before the Company in general meeting, or circulate to members, financial statements in respect of each financial year of the Company, consisting of: |
(a) | a profit and loss account giving a true and fair view of the profit or loss of the Company for the financial year; and |
- 27 -
(b) | a balance sheet giving a true and fair view of the state of affairs of the Company at the end of the financial year; |
together with a report of the Directors reviewing the business of the Company during the financial year. The financial statements and the Directors report, together with the auditors report, if any, shall be laid before the Company in general meeting, or circulated to members, no later than 180 days after the end of the financial year. | ||
37.04 | The financial year of the Company shall run from the anniversary of the Companys registration (or, in the case of the first financial year, the date of registration) to the day preceding the next such anniversary but, subject to any direction of the Company in general meeting, the Directors may from time to time prescribe some other period to be the financial year, provided that the Directors may not without the sanction of an ordinary resolution prescribe or allow any financial year longer than eighteen months. | |
38. | AUDIT | |
38.01 | The Audit Committee, if any, of the Board of Directors of the Company shall have the sole authority to appoint or replace the Companys Auditors. The Audit Committee shall be directly responsible for the compensation and oversight of the work of the Auditors for the purpose of preparing or issuing an audit report or related work. The Auditors shall report directly to the Audit Committee. If there is no Audit Committee at any time, its duties under this Article shall be performed by the Board. Nothing in this Article shall be construed as making it obligatory to appoint Auditors. | |
38.02 | The Auditors shall make a report to the members on the accounts examined by them and on every set of financial statements laid before the Company in general meeting, or circulated to members, pursuant to this Article during the Auditors tenure of office. | |
38.03 | The Auditors shall have right of access at all times to the Companys books, accounts and vouchers and shall be entitled to require from the Companys Directors and officers such information and explanations as the Auditors think necessary for the performance of the Auditors duties; and, if the Auditors fail to obtain all the information and explanations which, to the best of their knowledge and belief, are necessary for the purposes of their audit, they shall state that fact in their report to the members. | |
38.04 | The Auditors shall be entitled to attend any general meeting at which any financial statements which have been examined or reported on by them are to be laid before the Company and to make any statement or explanation they may desire with respect to the financial statements. | |
39. | WINDING-UP | |
39.01 | In the winding-up of the Company, subject to any special rights or restrictions for the time being attached to any shares or any class of shares, the assets available for |
- 28 -
distribution amongst the members as such shall be distributed according to the amounts (other than share premium) paid up on shares held by them. | ||
39.02 | In the winding-up of the Company the Liquidator may, with the sanction of a special resolution, determine that any winding-up distribution shall be made in whole or part by the distribution of specific assets. | |
40. | INDEMNITY | |
40.01 | The Directors and officers of the Company and any trustee for the time being acting in relation to any of the affairs of the Company and every former director, officer, or trustee and their respective heirs, executors, administrators and personal representatives (each of such persons being referred to in this Article as indemnified party) shall be indemnified out of the assets of the Company from and against all actions, proceedings, costs, charges, losses, damages and expenses which they or any of them shall or may incur or sustain by reason of any act done or omitted in or about the execution of their duties in their respective offices or trusts, except any which an indemnified party shall incur or sustain by or through his own willful neglect or default; no indemnified party shall be answerable for the acts, omissions, neglects or defaults of any other Director, officer, or trustee, or for joining in any receipt for the sake of conformity, or for the solvency or honesty of any banker or other persons with whom any moneys or effects belonging to the Company may be lodged or deposited for safe custody, or for any insufficiency of any security upon which any monies of the Company may be invested, or for any other loss or damage due to any such cause as aforesaid or which may happen in or about the execution of his office or trust unless the same shall happen through the willful neglect or default of such indemnified party. | |
41. | NOTICES | |
41.01 | Save as otherwise expressly provided in these Articles, notices by the Company pursuant to these Articles shall be in writing and may be given personally or by sending the notice by post, telex, telecopy or any other method of written communication; and, subject as aforesaid: |
(a) | when sent by post the notice shall be deemed given sixty hours (or one hundred and twenty hours, if overseas) after posting the notice, postage pre-paid, properly addressed (by airmail, if overseas); | ||
(b) | a notice sent by telex or telecopy shall be deemed given immediately upon dispatch properly addressed; and | ||
(c) | in any other case (other than delivery in person) the notice shall be deemed given at such time as the Directors estimate the notice should reach the addressee in the ordinary course. |
41.02 | A notice to a member may be addressed to him at his address shown in the Register. In |
- 29 -
the case of joint holders of a share, notice may be given to the holder first named in the Register in respect of the share, but notice to any of the joint holders shall be deemed notice to all. | ||
41.03 | Notice may be given by the Company to the person or persons whom the Company has been advised are entitled to a share or shares in consequence of the death or bankruptcy of a member or otherwise by operation of law, addressed to them by name, or by the title of representatives of the deceased, or trustee of the bankrupt, or by any like description at the address supplied for that purpose by the persons claiming to be so entitled, or at the option of the Company by giving the notice in any manner in which the same might have been given if the death, bankruptcy or other event had not occurred. | |
42. | ALTERATION OF ARTICLES | |
42.01 | Subject to the Statute, the Company may from time to time by special resolution alter or amend these Articles in whole or in part. |
- 30 -
BETWEEN: | CONSOLIDATED WATER CO. LTD. (formerly CAYMAN WATER COMPANY LIMITED), a Cayman Islands company having its registered office at Regatta Office Park, Windward Three, Fourth Floor, P.O. Box 1114 GT, Grand Cayman, Cayman Islands (the Company) |
AND: | AMERICAN STOCK TRANSFER & TRUST COMPANY of 40 Wall Street, New York, New York 10005, United States of America (the Option Agent) |
(1) | By an Option Deed dated as of August 6, 1997 (the Option Deed) the Directors of the Company granted to the holders of its Ordinary and Redeemable Preference Shares at any time before the Distribution Date options to subscribe for one one-hundredth of a Class B Share for each Ordinary or Redeemable Preference Share held (as that number may afterwards be adjusted pursuant to Section 11(b) of the Option Deed) on the terms set out in the Option Deed; | |
(2) | Under Section 26 of the Option Deed the Company and the Option Agent are empowered on the Companys direction to amend the Option Deed before the Distribution Date without the approval of the holders of the certificates representing Ordinary Shares and Redeemable Performance Shares; and | |
(3) | The Distribution Date has not yet occurred. |
1. | For the purposes of this Deed:- |
(i) | capitalized words not otherwise defined in it have the meanings assigned to them in the Option Deed; and | ||
(ii) | references to Sections and paragraphs are references to Sections and paragraphs of the Option Deed; |
2. | The Company and the Option Agent AMEND the Option Deed as follows:- |
(i) | by deleting the expression US$37.50 where it appears in: |
a. | Section 7, paragraph (b); and | ||
b. | Exhibit B; and | ||
c. | the first paragraph of Exhibit C |
and substituting therefor in each case the expression US$100.00; and |
(ii) | by deleting the sixth paragraph of Exhibit C and substituting therefor the following:- | ||
For example, at an exercise price of US$100.00 per Option, each Option not owned by an Acquiring Person (or by certain related parties) following an event set out in the preceding paragraph would entitle its holder to purchase US$100.00 worth of Ordinary Shares (or other consideration, as noted above) for US$100.00. Assuming that the Ordinary Shares had a per share value of US$100.00 at such time, the holder of each valid Option would be entitled to purchase 10 Ordinary Shares for US$100.00. |
3. | In all other respects the Company and the Option Agent confirm the Option Deed. |
EXECUTED as a deed and delivered on | ) | CONSOLIDATED WATER CO. LTD. | ||||||||
behalf of
CONSOLIDATED WATER CO.
|
) | |||||||||
LTD.
by Raymond Whittaker, Director in the
|
) | |||||||||
presence of:-
|
) | |||||||||
Brent Santha, Company Secretary
|
) | |||||||||
/s/ Brent Santha |
)
) ) |
Per |
/s/ Raymond Whittaker
|
|||||||
|
||||||||||
EXECUTED as a deed and delivered on | ) | AMERICAN STOCK TRANSFER & | ||||||||
behalf of AMERICAN STOCK | ) | TRUST COMPANY | ||||||||
TRANSFER & TRUST COMPANY
by
|
) | |||||||||
Herbert J. Lemmer, Vice-President in the
|
) | |||||||||
presence of:-
|
) | |||||||||
|
) | |||||||||
|
)
) |
Per |
/s/ Herbert Lemmer
|
|||||||
|
) |
- 2 -
BETWEEN: | CONSOLIDATED WATER CO. LTD. (formerly CAYMAN WATER COMPANY LIMITED), a Cayman Islands company having its registered office at Regatta Office Park, Windward Three, Fourth Floor, P.O. Box 1114 GT, Grand Cayman B.W.I. (the Company) |
AND: | AMERICAN STOCK TRANSFER & TRUST COMPANY of 40 Wall Street, New York, New York 10005, United States of America (the Option Agent) |
(1) | By an Option Deed dated as of August 6, 1997 (the Option Deed) the Directors of the Company granted to the holders of its Ordinary and Redeemable Preference Shares at any time before the Distribution Date options to subscribe for one one-hundredth of a Class B Share for each Ordinary or Redeemable Preference Share held (as that number may afterwards be adjusted pursuant to Section 11(b) of the Option Deed) on the terms set out in the Option Deed; | |
(2) | By a Deed of Amendment of Option Deed dated the 8 th day of August 2005 (the First Amendment Deed), the Company and the Option Agent amended the Option Deed as stated therein; | |
(3) | On 17th August 2005, the Companys Memorandum of Association was altered by subdividing all its Ordinary and Redeemable Preference Shares, issued and unissued, and including the Class B Shares, from a par value of CI$1.00 to a par value of CI$0.50 each; | |
(4) | The Company wishes to further amend the Option Deed to reflect the subdivision of its shares, to correct a clerical error in paragraph 2(ii) of the First Amendment Deed and to restate the amendments made by the First Amendment Deed and this Deed into this Deed; | |
(5) | Under Section 26 of the Option Deed the Company and the Option Agent are empowered on the Companys direction to amend the Option Deed before the Distribution Date without the approval of the holders of the certificates representing Ordinary Shares and Redeemable Performance Shares; and | |
(6) | The Distribution Date has not yet occurred. |
1. | For the purposes of this Deed:- |
(i) | capitalized words not otherwise defined in it have the meanings assigned to them in the Option Deed; and |
(ii) | references to Sections and paragraphs are references to Sections and paragraphs of the Option Deed; |
2. | The Company and the Option Agent REVERSE the amendments made by the First Amendment Deed and now RE-AMEND the Option Deed as follows: - |
(i) | by deleting the expression US$37.50 where it appears in: |
a. | Section 7, paragraph (b); and | ||
b. | Exhibit B; and | ||
c. | the first paragraph of Exhibit C |
and substituting therefor in each case the expression US$50.00; | |||
(ii) | by deleting the expression CI$1.00 wherever it appears and substituting the expression CI$0.50; and | ||
(iii) | by deleting the sixth paragraph of Exhibit C and substituting therefor the following:- | ||
For example, at an exercise price of US$50.00 per Option, each Option not owned by an Acquiring Person (or by certain related parties) following an event set out in the preceding paragraph would entitle its holder to purchase US$100.00 worth of Ordinary Shares (or other consideration, as noted above) for US$50.00. Assuming that the Ordinary Shares had a per share value of US$20.00 at such time, the holder of each valid Option would be entitled to purchase 5 Ordinary Shares for US$50.00. |
3. | In all other respects the Company and the Option Agent confirm the Option Deed. |
EXECUTED as a deed and delivered on | ) | CONSOLIDATED WATER CO. LTD. | ||||||||
behalf of
CONSOLIDATED WATER CO.
|
) | |||||||||
LTD.
by Frederick McTaggart, Director
|
) | |||||||||
in the presence of:-
|
) | |||||||||
Brent Santha
|
) | |||||||||
|
) | |||||||||
/s/ Brent Santha |
)
) ) |
Per |
/s/ Frederick McTaggart
|
- 2 -
(1) | the Registration Statement (not including the exhibits filed or to be filed therewith); | ||
(2) |
the Companys Amended and Restated Memorandum of Association;
|
||
(3) | the Companys Amended and Restated Articles of Association; and | ||
(4) | the resolutions adopted by the Board of Directors of the Company and its committees in connection with the authorization, issue and sale of the Shares. |
i. | The Company failed to properly track fixed assets and accumulated depreciation, including work-in-progress accounts. | ||
ii. | The Company does not have sufficient personnel resources with appropriate accounting expertise. | ||
iii. | The Company did not properly track inventory and management did not sufficiently review the physical count worksheets to the final inventory lists. | ||
iv. | The Company did not sufficiently review the inter-company eliminations. | ||
v. | The Company did not sufficiently document the system access controls around its financial management information system. |