The Cayman Islands
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N/A
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer Identification No.)
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c/o Intertrust Corporate Services (Cayman) Limited
190 Elgin Avenue
George Town, Grand Cayman, KY1-9005
Cayman Islands
(Address of Principal Executive Offices)
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N/A
(Zip Code)
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Large accelerated filer
x
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Accelerated filer
¨
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Non-accelerated filer
¨
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Smaller reporting company
¨
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Title of Securities to
be Registered
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Amount to be
Registered
(1)
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Proposed Maximum
Offering Price Per
Share
(2)
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Proposed Maximum
Aggregate Offering
Price
(2)
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Amount of
Registration Fee
(2)
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Ordinary Shares, par
value $0.01 per share
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3,000,000
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$28.32
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$84,960,000
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$10,943
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(1)
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Pursuant to Rule 416, this Registration Statement shall also cover any additional ordinary shares which may become issuable under the Fresh Del Monte Produce Inc. 2014 Omnibus Share Incentive Plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without receipt of consideration which results in an increase in the number of outstanding ordinary shares.
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(2)
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Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(h) on the basis of the average of the high and low prices of the ordinary shares on the New York Stock Exchange on May 16, 2014.
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*
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The documents containing the information required by Part I of Form S-8 have been or will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”), and have been omitted from the Registration Statement in accordance with Rule 428 under the Securities Act and the Note to Part I of Form S-8.
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(i)
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The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 27, 2013, filed with the Commission on February 21, 2014 (the “Annual Report”);
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(ii)
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The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 28, 2014, filed with the Commission on April 29, 2014;
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(iii)
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The Registrant’s Current Reports on Form 8-K, filed with the Commission on February 19 and 20 and May 1, 2014; and
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(iv)
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The description of the Ordinary Shares of the Registrant as contained under the caption “Description of Share Capital” in the prospectus dated October 23, 1997, included in the Registration Statement on Form F-1 (No. 333-7708), filed by the Registrant under the Securities Act with the SEC on October 3, 1997, as amended by Amendment No. 1 and Amendment No. 2 thereto, filed by the Registrant under the Securities Act with the SEC on October 16, 1997, and October 22, 1997, respectively, and incorporated by reference to the Registration Statement on Form 8-A filed by the Registrant under the Exchange Act with the SEC on October 15, 1997.
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(a)
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Every Director (including, for the purposes of this Article any Alternate Director appointed pursuant to the provisions of these Articles), and any former Director or officer (solely with respect to such former Director’s or officer’s term as such) and every Managing Director, Secretary, Assistant Secretary, or other officer or agent, for the time being and from time to time of the Company and the personal representatives of the same and any individuals who, while a director or officer of the Company and at the request of the Company, serves or has served as a director, officer, partner or trustee of (i) another corporation, partnership, joint venture or other entity which is a subsidiary of the Company, or (ii) a trust or employee benefit plan associated with the business of the Company or a subsidiary of the Company shall be indemnified and secured harmless out of the assets and funds of the Company from and against any claim or liability and all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by him in or about the conduct of the Company’s business or affairs or in the execution or discharge of his duties, powers, authorities or discretions (including any claim or liability to which such person may become subject or which such person may incur by reason of his status as a present or former Director or officer of the Company), including without prejudice to the generality of the foregoing, any costs, expenses, losses, or liabilities incurred by him in defending (whether successfully or otherwise) any civil proceedings concerning the Company or its affairs in any court, whether in the Cayman Islands or elsewhere. The Company shall further have the power, with the approval of the Board of Directors, to provide such indemnification and advancement of expenses to any employee or agent of the Company.
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(b)
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No such Director, Alternate Director, Managing Director, agent, Secretary, Assistant Secretary or other officer of the Company shall be liable (i) for the acts, receipts, neglects, defaults or omissions of any other such Director, Alternate Director, Managing Director, agent, Secretary, Assistant Secretary or other officer of the Company or (ii) by reason of his having joined in any receipt for money not received by him personally or (iii) for any loss on account of defect of title to any property of the Company or (iv) on account of the insufficiency of any security in or upon which any money of the Company shall be invested or (v) for any loss incurred through any bank, broker or other agent or (vi) for any loss occasioned by any negligence, default, breach of duty, breach of trust, error of judgment or oversight on his part or (vii) for any loss, damage or misfortune whatsoever which may happen in or arise from the execution or discharge of the duties, powers, authorities or discretions of his office or in relation thereto, unless the same shall happen through his own dishonesty.
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(c)
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Neither the amendment nor repeal of this Regulation, nor the adoption or amendment of any other provision of the Memorandum and Articles of Association of the Company inconsistent with this Regulation, shall apply to affect in any respect the applicability of this Regulation with respect to any act, or circumstance or condition, or failure to act, which occurred prior to such amendment, repeal or adoption.
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Exhibit Number
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Description
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3.1
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Amended and Restated Memorandum of Association of Fresh Del Monte Produce Inc. (incorporated by reference from Exhibit 3.6 to the Company’s Registration Statement on Form F-1 (File No. 333-7708)).
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3.2
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Amended and Restated Articles of Association of Fresh Del Monte Produce Inc. (incorporated by reference from Exhibit 3.7 to the Company’s Registration Statement on Form F-1 (File No. 333-7708)).
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5.1
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Opinion of Walkers regarding the due authorization of the issuance of the shares registered by this Registration Statement on Form S-8 from a Cayman Islands legal perspective only.*
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10.1
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2014 Omnibus Share Incentive Plan (incorporated by reference from Exhibit A to the Company’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on March 31, 2014).
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23.1
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Consent of Walkers (included in Exhibit 5.1).*
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23.2
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Consent of Ernst & Young LLP, Independent Registered Certified Public Accounting Firm.*
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24.1
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Power of Attorney (set forth on the signature page to this Registration Statement).*
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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i.
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To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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ii.
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To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
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iii.
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To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment 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.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(4)
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement 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.
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(5)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURE
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TITLE
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DATE
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/s/ Mohammad Abu-Ghazaleh
Mohammad Abu-Ghazaleh
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Chairman, Director and
Chief Executive Officer
(Principal Executive Officer)
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May 23, 2014
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/s/ Hani El-Naffy
Hani El-Naffy
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President, Director and
Chief Operating Officer
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May 23, 2014
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/s/ Richard Contreras
Richard Contreras
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Senior Vice President and
Chief Financial Officer (Principal Financial and Accounting Officer)
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May 23, 2014
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/s/ Amir Abu-Ghazaleh
Amir Abu-Ghazaleh
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Director
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May 23, 2014
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/s/ Salvatore H. Alfiero
Salvatore H. Alfiero
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Director
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May 23, 2014
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/s/ Michael J. Berthelot
Michael J. Berthelot
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Director
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May 23, 2014
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/s/ Edward L. Boykin
Edward L. Boykin
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Director
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May 23, 2014
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/s/ Robert S. Bucklin
Robert S. Bucklin
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Director
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May 23, 2014
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/s/ Madeleine L. Champion
Madeleine L. Champion
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Director
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May 23, 2014
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/s/ John H. Dalton
John H. Dalton
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Director
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May 23, 2014
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Exhibit Number
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Description
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3.1
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Amended and Restated Memorandum of Association of Fresh Del Monte Produce Inc. (incorporated by reference from Exhibit 3.6 to the Company’s Registration Statement on Form F-1 (File No. 333-7708)).
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3.2
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Amended and Restated Articles of Association of Fresh Del Monte Produce Inc. (incorporated by reference from Exhibit 3.7 to the Company’s Registration Statement on Form F-1 (File No. 333-7708)).
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5.1
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Opinion of Walkers regarding the due authorization of the issuance of the shares registered by this Registration Statement on Form S-8 from a Cayman Islands legal perspective only.*
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10.1
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2014 Omnibus Share Incentive Plan (incorporated by reference from Exhibit A to the Company’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on March 31, 2014).
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23.1
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Consent of Walkers (included in Exhibit 5.1).*
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23.2
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Consent of Ernst & Young LLP, Independent Registered Certified Public Accounting Firm.*
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24.1
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Power of Attorney (set forth on the signature page to this Registration Statement).*
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1.
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The Certificate of Incorporation dated 29 August 1996, Certificate of Incorporation on Change of Names dated 11 September 1996 and 16 May 1997, Memorandum and Articles of Association adopted on 30 September 1997 (the "
Memorandum and Articles
")
and Register of Directors
as provided to us by the Company's registered office in the Cayman Islands (the "
Company Records
").
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2.
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A copy of executed written resolutions of the Board of Directors of the Company dated 21 May 2014 (the "
Resolutions
").
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3.
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A copy of the Fresh Del Monte Produce Inc. 2014 Omnibus Share Incentive Plan (the "
Plan
").
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4.
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The Register of Writs and other Originating Process of the Grand Court kept at the Clerk of Court's Office, George Town, Grand Cayman (the "
Court Register
"), examined at 9.00am on 20 May 2014 (the "
Search Time
").
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5.
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Such other documents as we have considered necessary for the purposes of rendering this opinion.
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1.
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The originals of all documents examined in connection with this opinion are authentic, all signatures, initials and seals are genuine, all documents purporting to be sealed have been so sealed and all copies are complete and conform to their originals. All documents conform in every material respect to the latest drafts of the same produced to us and, where provided in successive drafts, have been marked up to indicate all changes to such documents.
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2.
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The Company Records are
complete and accurate record of the business transacted by the Company and all matters required by law and/or the Memorandum and Articles of Association of the Company to be recorded therein are so recorded
.
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3.
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The Memorandum and Articles of Association reviewed by us are the Memorandum and Articles of Association of the Company in force at the date hereof.
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4.
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There are no records of the Company (other than the Company Records), agreements, documents or arrangements other than the documents expressly referred to herein as having been examined by us which would affect any opinion given herein.
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5.
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The Resolutions are a true and correct copy of the originals of the same, have been duly executed (and where by a corporate entity such execution has been duly authorised if so required) by or on behalf of each Director and the signatures and initials thereon are those of a person or persons in whose name the Resolutions have been expressed to be signed.
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6.
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All amounts payable or otherwise due (at any time) in connection with the issue of each of the Shares have been paid in full.
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7.
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The Company has sufficient authorised and unissued shares to enable it to issue the Shares.
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8.
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The Resolutions remain in full form and effect and have not been revoked or varied.
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9.
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No resolutions to wind up the Company have been adopted by its members.
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10.
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The records of the Company which we have specifically not reviewed, do not disclose anything which would affect the opinion given herein.
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11.
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The Board of Directors of the Company considers the allotment and issue of the Shares pursuant to and in accordance with the terms of the Plan to be in the best interests of the Company.
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1.
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Section 125 of the Companies Law provides that any transfer of shares, not being a transfer of shares with the sanction of the liquidator, and any alteration in the status of a Cayman Islands company's members made after the commencement of a voluntary winding up is void.
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2.
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Section 99 of the Companies Law provides that when a winding up order has been made, any disposition of a Cayman Islands company's property and any transfer of shares or alteration in the status of a Cayman Islands company's members made after the commencement of the winding up is, unless the Court otherwise orders, void.
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3.
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The Court Register may not reveal whether any out of court appointment of a liquidator or a receiver has occurred. The Court Register may not constitute a complete record of the proceedings before the Grand Court as at the Search Time including for the following reasons:
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(a)
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it may not reveal whether any documents filed subsequently to an originating process by which new causes of action and/or new parties are or may be added (including amended pleadings, counterclaims and third party notices) have been filed with the Grand Court;
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(a)
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it may not reveal any originating process (including a winding up petition) in respect of the Company in circumstances where the Court has prior to the issuance of such process ordered that such process upon issuance be anonymised (whether on a temporary basis or otherwise);
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(b)
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it may not be updated every day;
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(c)
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documents may have been removed from it, or may not have been placed on it, where an order has been made to that effect in a particular cause or matter; and
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(d)
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it may not reveal any orders made ex parte on an urgent basis where the originating process is issued subsequently pursuant to an undertaking given to the Court at the time the order is made.
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4.
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The Shares when issued pursuant to and in accordance with the Plan and any relevant award (which we note we have not reviewed) will be shares in the Company attracting all rights, privileges and obligations as set out in the Memorandum and Articles of the Company and we make no comment and provide no opinion on the contractual rights
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