Registration Statement of a Foreign Private Issuer for Securities Issued in a Business-Combination Transaction — Form F-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: F-4 Registration Statement of a Foreign Private Issuer 268 1.36M
for Securities Issued in a
Business-Combination Transaction
2: EX-1 Registration Rights Agreement 20 89K
3: EX-3.1 Memorandum and Articles of Association 27 107K
4: EX-4.1 Indenture 80 335K
5: EX-4.2 First Supplemental Indenture 46 189K
6: EX-5.1 Opinion of Davis Polk & Wardwell 2 18K
7: EX-5.2 Opinion of Paulo Francisco De Almeida Lopes 2 18K
8: EX-5.3 Opinion of Walkers 4 23K
9: EX-10.1 Account Control Agreement 9 42K
10: EX-12 Computation of Ratio of Earnings to Fixed Charges 1 17K
11: EX-15.1 Awareness Letter of Pricewaterhousecoopers 1 16K
20: EX-15.10 Awareness Letter of Deloitte Touche Tohmatsu 1 16K
21: EX-15.11 Awareness Letter of Arthur Andersen S/C 1 16K
22: EX-15.12 Awareness Letter of Deloitte Touche Tohmatsu 1 16K
23: EX-15.13 Awareness Letter of Kpmg Auditores Independentes 1 18K
24: EX-15.14 Awareness Letter of Arthur Andersen S/C 1 16K
12: EX-15.2 Awareness Letter of Deloitte Touche Tohmatsu 1 17K
13: EX-15.3 Awareness Letter of Deloitte Touche Tohmatsu 1 16K
14: EX-15.4 Awareness Letter of Kpmg Auditores Independentes 1 16K
15: EX-15.5 Awareness Letter of Deloitte Touche Tohmatsu 1 17K
16: EX-15.6 Awareness Letter of Deloitte Touche Tohmatsu 1 16K
17: EX-15.7 Awareness Letter of Deloitte Touche Tohmatsu 1 16K
18: EX-15.8 Awareness Letter of Arthur Andersen S/C 1 16K
19: EX-15.9 Awareness Letter of Arthur Andersen S/C 1 17K
25: EX-23.1 Consent of Pricewaterhousecoopers 1 16K
34: EX-23.10 Consent of Arthur Andersen S/C 1 16K
35: EX-23.11 Consent of Arthur Andersen S/C 1 16K
36: EX-23.12 Consent of Deloitte Touche Tohmatsu 1 16K
37: EX-23.13 Consents of Arthur Andersen S/C 1 16K
38: EX-23.14 Consent of Deloitte Touche Tohmatsu 2 19K
39: EX-23.15 Consent of Kpmg 1 16K
40: EX-23.16 Consent of Deloitte Touche Tohmatsu 1 16K
41: EX-23.17 Consent of Arthur Andersen 1 16K
42: EX-23.18 Consent of Deloitte Touche Tohmatsu 2 19K
43: EX-23.19 Consent of Deloitte Touche Tohmatsu 1 16K
26: EX-23.2 Consent of Deloitte Touche Tohmatsu 2 19K
44: EX-23.20 Consent of Trevisan 1 16K
45: EX-23.21 Consent of Deloitte Touche Thomatsu 1 16K
46: EX-23.22 Consent of Deloitte Touche Tohmatsu 1 16K
47: EX-23.23 Consent of Mineral Resources Development, Inc. 1 16K
48: EX-23.24 Consent of Pricewaterhousecoopers 1 15K
27: EX-23.3 Consent of Deloitte Touche Tohmatsu 2 19K
28: EX-23.4 Consent of Deloitte Touche Tohmatsu 2 19K
29: EX-23.5 Consent of Kpmg 1 16K
30: EX-23.6 Consent of Kpmg LLP 1 16K
31: EX-23.7 Consents of Deloitte Touche Tohmatsu 1 16K
32: EX-23.8 Consents of Deloitte Touche Tohmatsu 2 19K
33: EX-23.9 Consent of Deloitte Touche Tohmatsu 1 16K
49: EX-25.1 Statement of Eligibility on Form T-1 4 24K
50: EX-99.1 Form of Letter of Transmittal 10 60K
51: EX-99.2 Form of Notice of Guaranteed Delivery 2 21K
52: EX-99.3 Form of Letter to Clients 2± 17K
53: EX-99.4 Form of Letter to Nominees 2 18K
54: EX-99.5 Form of Instructions to Registered Holder 2 18K
55: EX-99.6 Form of Exchange Agent Agreement 10 40K
Exhibit 3.1
THE COMPANIES LAW (2000 REVISION)
COMPANY LIMITED BY SHARES
MEMORANDUM & ARTICLES
OF
ASSOCIATION
OF
VALE OVERSEAS LIMITED
TABLE OF CONTENTS
MEMORANDUM OF ASSOCIATION
The Name of the Company.................................................... 1
The Registered Office of the Company....................................... 1
The Objects for which the Company is established........................... 1
The Liability of the Members............................................... 1
The Capital of the Company................................................. 2
ARTICLES OF ASSOCIATION
Table A.................................................................... 1
Interpretation............................................................. 1
Preliminary................................................................ 2
Shares..................................................................... 3
Variation Of Rights Attaching To Shares.................................... 3
Certificates............................................................... 3
Fractional Shares.......................................................... 4
Lien....................................................................... 4
Calls On Shares............................................................ 4
Forfeiture Of Shares....................................................... 5
Transfer Of Shares......................................................... 6
Transmission Of Shares..................................................... 6
Alteration Of Capital...................................................... 7
Redemption And Purchase Or Own Shares...................................... 7
Closing Register Of Members Or Fixing Record Date.......................... 8
General Meetings........................................................... 8
Notice Of General Meetings................................................. 9
Proceedings At General Meetings............................................ 9
Votes Of Members........................................................... 10
Corporations Acting By Representatives At Meetings......................... 11
Directors.................................................................. 11
Alternate Director......................................................... 12
Powers And Duties Of Directors............................................. 12
Borrowing Powers Of Directors.............................................. 13
The Seal................................................................... 13
Disqualification Of Directors.............................................. 14
Proceedings Of Directors................................................... 14
Dividends.................................................................. 16
Accounts And Audit......................................................... 17
Capitalisation Of Profits.................................................. 17
Share Premium Account...................................................... 18
Notices.................................................................... 19
Indemnity.................................................................. 20
Non-Recognition Of Trusts.................................................. 20
Winding Up................................................................. 20
Amendment Of Articles Of Association....................................... 21
Registration By Way Of Continuation........................................ 21
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THE COMPANIES LAW (2000 REVISION)
---------------------------------
REGISTERED AND FILED
COMPANY LIMITED BY SHARES AS NO: 109351 THIS 3RD DAY
------------------------- OF APRIL 2001
/s/ DONNELL H. DIXON
MEMORANDUM OF ASSOCIATION ---------------------------
OF ASST REGISTRAR OF COMPANIES
CAYMAN ISLANDS
VALE OVERSEAS LIMITED
----------------------
1. The name of the Company is VALE OVERSEAS LIMITED.
2. The Registered Office of the Company will be situate at the offices of
WALKERS, WALKER HOUSE, P.O. BOX 265GT, GEORGE TOWN, GRAND CAYMAN, CAYMAN
ISLANDS or at such other location as the Directors may from time to time
determine.
3. The objects for which the Company is established are unrestricted and the
Company shall have full power and authority to carry out any object not
prohibited by any law as provided by Section 7(4) of The Companies Law
(2000 Revision).
4. 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 27(2) of The Companies Law (2000 Revision).
5. Nothing in the preceding sections shall be deemed to permit the Company to
carry on the business of a Bank or Trust Company without being licensed in
that behalf under the provisions of the Banks & Trust Companies Law (2000
Second Revision), or to carry on Insurance Business from within the Cayman
Islands or the business of an Insurance Manager, Agent, Sub-agent or Broker
without being licensed in that behalf under the provisions of the Insurance
Law (1999 Revision), or to carry on the business of Company Management
without being licensed in that behalf under the provisions of the Companies
Management Law (2000 Revision).
6. The Company will not trade in the Cayman Islands with any person, firm or
corporation except in furtherance of the business of the Company carried on
outside the Cayman Islands; Provided that nothing in this section shall be
construed as to prevent the Company effecting and concluding contracts in
the Cayman Islands, and exercising in the Cayman Islands all of its powers
necessary for the carrying on of its business outside the Cayman Islands.
7. The liability of the members is limited to the amount, if any, unpaid on
the shares respectively held by them.
[REGISTRAR OF COMPANIES
CAYMAN ISLANDS EXEMPT STAMP]
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8. The capital of the Company is US$1,000.00 divided into 1,000 shares of a
nominal or par value of US$1.00 each provided always that subject to the
provisions of The Companies Law (2000 Revision) and the Articles of
Association the Company shall have power to redeem or purchase any of its
shares and to sub-divide or consolidate the said shares or any of them and
to issue all or any part of its capital whether original, redeemed,
increased or reduced with or without any preference, priority or special
privilege or subject to any postponement of rights or to any conditions or
restrictions whatsoever and so that unless the conditions of issue shall
otherwise expressly provide every issue of shares whether stated to be
Ordinary, Preference or otherwise shall be subject to the powers on the
part of the Company hereinbefore provided.
9. The Company may exercise the power contained in Section 225 of The
Companies Law (2000 Revision) to deregister in the Cayman Islands and be
registered by way of continuation in some other jurisdiction.
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The undersigned, whose name, address and description is subscribed, is desirous
of being formed into a Company in pursuance of this Memorandum of Association,
and agrees to take the number of shares in the capital of the Company set
opposite his name.
[Download Table]
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NAME, ADDRESS AND DESCRIPTION NUMBER OF SHARES TAKEN BY
OF SUBSCRIBER SUBSCRIBER
--------------------------------------------------------------------------------
JONATHAN CULSHAW ONE SHARE
P.O. Box 265GT,
Grand Cayman
(Sgd.) JONATHAN CULSHAW
-------------------------------
Attorney-at-Law JONATHAN CULSHAW
3 April 2001
(Sgd.) PAULA SHEAFF
-------------------------------
Witness to the above signature:
PAULA SHEAFF
Address: P.O. Box 265GT,
Grand Cayman
Occupation: Secretary
I, DONNELL H. DIXON, Asst. Registrar of Companies, in and for the Cayman
Islands, DO HEREBY CERTIFY that this is a true copy of the Memorandum of
Association of VALE OVERSEAS LIMITED.
Dated this 3rd of April, 2001.
/s/ DONNELL H. DIXON
-----------------------------
[REGISTRAR OF COMPANIES
CAYMAN ISLANDS EXEMPT STAMP]
3
[CAYMAN ISLANDS GRAPHIC]
THE COMPANIES LAW (2000 REVISION)
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
VALE OVERSEAS LIMITED
--------------------------------
REGISTERED AND FILED
AS NO: 109351 THIS 3RD DAY
OF APRIL 2001
/S/ DONNELL H. DIXON
---------------------------
ASST REGISTRAR OF COMPANIES
CAYMAN ISLANDS
--------------------------------
TABLE A
The Regulations contained or incorporated in Table 'A' in the First Schedule of
the Companies Law (2000 Revision) shall not apply to this Company and the
following Articles shall comprise the Articles of Association of the Company:
INTERPRETATION
1. In these Articles:
"COMPANIES LAW" means the Companies Law (2000 Revision) of the Cayman
Islands and any statutory amendment or re-enactment thereof. Where any
provision of the Companies Law is referred to, the reference is to that
provision as amended by any law for the time being in force;
"DIRECTORS" and "BOARD OF DIRECTORS" means the Directors of the Company for
the time being, or as the case may be, the Directors assembled as a Board
or as a committee thereof;
"MEMBER" means a person whose name is entered in the register of members as
the holder of a share or shares and includes each subscriber of the
Memorandum pending the issue to him of the subscriber share or shares;
"MEMORANDUM OF ASSOCIATION" means the Memorandum of Association of the
Company, as amended and re-stated from time to time;
"ORDINARY RESOLUTION" means a resolution:
(a) passed by a simple majority of such Members as, being entitled to do
so, vote in person or, where proxies are allowed, by proxy at a general meeting
of the Company and where a poll is taken regard shall be had in computing a
majority to the number of votes to which each Member is entitled; or
(b) approved in writing by all of the Members entitled to vote at a
general meeting of the Company in one or more instruments each signed by one or
more of the Members, and the effective date of the resolution so adopted shall
be the date on which the instrument, or the last of such instruments if more
than one, is executed;
[REGISTRAR OF COMPANIES
CAYMAN ISLANDS EXEMPT
STAMP]
1
"PAID UP" means paid up as to the par value and any premium payable in
respect of the issue of any shares and includes credited as paid up:
"REGISTER OF MEMBERS" means the register to be kept by the Company in
accordance with Section 40 of the Companies Law:
"SEAL" means the Common Seal of the Company including any facsimile
thereof:
"SHARE" means any share in the capital of the Company, including a
fraction of any share:
"SIGNED" includes a signature or representation of a signature affixed by
mechanical means:
"SPECIAL RESOLUTION" means a resolution passed in accordance with Section
60 of the Companies Law, being a resolution:
(a) passed by a majority of not less than two-thirds of such Members as,
being entitled to do so, vote in person or, where proxies are allowed,
by proxy at a general meeting of the Company of which notice
specifying the intention to propose the resolution as a Special
Resolution has been duly given and where a poll is taken regard shall
be had in computing a majority to the number of votes to which each
Member is entitled, or
(b) approved in writing by all of the Members entitled to vote at a
general meeting of the Company in one or more instruments each signed
by one or more of the Members and the effective date of the Special
Resolution so adopted shall be the date on which the instrument or the
last of such instruments if more than one, is executed.
2. In these Articles, save where the context requires otherwise:
(a) words importing the singular number shall include the plural number
and vice versa;
(b) words importing the masculine gender only shall include the feminine
gender;
(c) words importing persons only shall include companies or associations
or bodies of persons, whether corporate or not;
(d) "may" shall be construed as permissive and "shall" shall be construed
as imperative;
(e) a reference to a dollar or dollars (or $) is a reference to dollars of
the United States; and
(f) references to a statutory enactment shall include reference to any
amendment or reenactment thereof for the time being in force.
3. Subject to the last two preceding Articles, any words defined in the
Companies Law shall, if not inconsistent with the subject or context, bear
the same meaning in these Articles.
PRELIMINARY
4. The business of the Company may be commenced as soon after incorporation as
the Directors see fit, notwithstanding that part only of the shares may
have been allotted or issued.
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5. The registered office of the Company shall be at such address in the Cayman
Islands as the Directors shall from time to time determine. The Company may
in addition establish and maintain such other offices and places of
business and agencies in such places as the Directors may from time to time
determine.
SHARES
6. Subject as otherwise provided in these Articles, all shares in the capital
of the Company for the time being and from time to time unissued shall be
under the control of the Directors, and may be re-designated, allotted or
disposed of in such manner, to such persons and on such terms as the
Directors in their absolute discretion may think fit.
7. The Company may in so far as may be permitted by law, pay a commission to
any person in consideration of his subscribing or agreeing to subscribe
whether absolutely or conditionally for any shares. Such commissions may be
satisfied by the payment of cash or the lodgement of fully or partly
paid-up shares or partly in one way and partly in the other. The Company
may also on any issue of shares pay such brokerage as may be lawful.
VARIATION OF RIGHTS ATTACHING TO SHARES
8. If at any time the share capital is divided into different classes of
shares, the rights attaching to any class (unless otherwise provided by the
terms of issue of the shares of that class) may be varied or abrogated with
the consent in writing of the holders of two-thirds of the issued shares of
that class, or with the sanction of a resolution passed by at least a
two-thirds majority of the holders of shares of the class present in person
or by proxy at a separate general meeting of the holders of the shares of
the class. To every such separate general meeting the provisions of these
Articles relating to general meetings of the Company shall mutatis mutandis
apply, but so that the necessary quorum shall be at least one person
holding or representing by proxy at least one-third of the issued shares of
the class and that any holder of shares of the class present in person or
by proxy may demand a poll.
9. The rights conferred upon the holders of the shares of any class issued
with preferred or other rights shall not, unless otherwise expressly
provided by the terms of issue of the shares of that class, be deemed to be
varied or abrogated by the creation or issue of further shares ranking pari
passu therewith or the redemption or purchase of shares of any class by the
Company.
CERTIFICATES
10. Every person whose name is entered as a member in the Register of Members
shall, without payment, be entitled to a certificate in the form determined
by the Directors. Such certificate may be under the Seal. All certificates
shall specify the share or shares held by that person and the amount paid
up thereon, provided that in respect of a share or shares held jointly by
several persons the Company shall not be bound to issue more than one
certificate, and delivery of a certificate for a share to one of several
joint holders shall be sufficient delivery to all.
11. If a share certificate is defaced, lost or destroyed it may be renewed on
such terms, if any, as to evidence and indemnity as the Directors think
fit.
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FRACTIONAL SHARES
12. The Directors may issue fractions of a share of any class of shares, and, if
so issued, a fraction of a share (calculated to three decimal points) shall
be subject to and carry the corresponding fraction of liabilities (whether
with respect to any unpaid amount thereon, contribution, calls or
otherwise), limitations, preferences, privileges, qualifications,
restrictions, rights (including, without limitation, voting and
participation rights) and other attributes of a whole share of the same
class of shares. If more than one fraction of a share of the same class is
issued to or acquired by the same Member such fractions shall be
accumulated. For the avoidance of doubt, in these Articles the expression
"share" shall include a fraction of a share.
LIEN
13. The Company shall have a first priority lien and charge on every share (not
being a fully paid up share) for all moneys (whether presently payable or
not) called or payable at a fixed time in respect of that share, and the
Company shall also have a first priority lien and charge on all shares
(other than fully paid up shares) standing registered in the name of a
single person for all moneys presently payable by him or his estate to the
Company, but the Directors may at any time declare any share to be wholly or
in part exempt from the provisions of this Article. The Company's lien, if
any, on a share shall extend to all dividends payable thereon.
14. The Company may sell, in such manner as the Directors think fit, any shares
on which the Company has a lien, but no sale shall be made unless some sum
in respect of which the lien exists is presently payable nor until the
expiration of 14 days after a notice in writing, stating and demanding
payment of such part of the amount in respect of which the lien exists as is
presently payable, has been given to the registered holder for the time
being of the share, or the persons entitled thereto by reason of his death
or bankruptcy.
15. For giving effect to any such sale the Directors may authorise some person
to transfer the shares sold to the purchaser thereof. The purchaser shall be
registered as the holder of the shares comprised in any such transfer and he
shall not be bound to see to the application of the purchase money, nor
shall his title to the shares be affected by any irregularity or invalidity
in the proceedings in reference to the sale.
16. The proceeds of the sale shall be received by the Company and applied in
payment of such part of the amount in respect of which the lien exists as is
presently payable, and the residue shall (subject to a like lien for sums
not presently payable as existed upon the shares prior to the sale) be paid
to the person entitled to the shares at the date of the sale.
CALLS ON SHARES
17. The Directors may from time to time make calls upon the Members in respect
of any moneys unpaid on their shares, and each Member shall (subject to
receiving at least 14 days notice specifying the time or times of payment)
pay to the Company at the time or times so specified the amount called on
his shares.
18. The joint holders of a share shall be jointly and severally liable to pay
calls in respect thereof.
19. If a sum called in respect of a share is not paid before or on the day
appointed for payment thereof, the person from whom the sum is due shall pay
interest upon the sum at the rate of
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eight per centum per annum from the day appointed for the payment thereof
to the time of the actual payment, but the Directors shall be at liberty to
waive payment of that interest wholly or in part.
20. The provisions of these Articles as to the liability of joint holders and
as to payment of interest shall apply in the case of non-payment of any sum
which, by the terms of issue of a share, becomes payable at a fixed time,
whether on account of the amount of the share, or by way of premium, as if
the same had become payable by virtue of a call duly made and notified.
21. The Directors may make arrangements on the issue of shares for a difference
between the Members, or the particular shares, in the amount of calls to be
paid and in the times of payment.
22. The Directors may, if they think fit, receive from any member willing to
advance the same all or any part of the moneys uncalled and unpaid upon any
shares held by him, and upon all or any of the moneys so advanced may
(until the same would, but for such advance, become presently payable) pay
interest at such rate (not exceeding without the sanction of an Ordinary
Resolution, eight per cent. per annum) as may be agreed upon between the
Member paying the sum in advance and the Directors.
FORFEITURE OF SHARES
23. If a Member fails to pay any call or instalment of a call on the day
appointed for payment thereof, the Directors may, at any time thereafter
during such time as any part of such call or instalment remains unpaid,
serve a notice on him requiring payment of so much of the call or
instalment as is unpaid, together with any interest which may have accrued.
24. The notice shall name a further day (not earlier than the expiration of 14
days from the date of the notice) on or before which the payment required
by the notice is to be made, and shall state that in the event of
non-payment at or before the time appointed the shares in respect of which
the call was made will be liable to be forfeited.
25. If the requirements of any such notice as aforesaid are not complied with,
any share in respect of which the notice has been given may at any time
thereafter, before the payment required by notice has been made, be
forfeited by a resolution of the Directors to that effect.
26. A forfeited share may be sold or otherwise disposed of on such terms and in
such manner as the Directors think fit, and at any time before a sale or
disposition the forfeiture may be cancelled on such terms as the Directors
think fit.
27. A person whose shares have been forfeited shall cease to be a Member in
respect of the forfeited shares, but shall, notwithstanding, remain liable
to pay to the Company all moneys which at the date of forfeiture were
payable by him to the Company in respect of the shares, but his liability
shall cease if and when the Company receives payment in full of the fully
paid up amount of the shares.
28. A statutory declaration in writing that the declarant is a Director of the
Company, and that a share in the Company has been duly forfeited on a date
stated in the declaration, shall be conclusive evidence of the facts
therein stated as against all persons claiming to be entitled to the share.
The Company may receive the consideration, if any, given for the share on
any sale or disposition thereof and may execute a transfer of the share in
favour of the person to
5
whom the share is sold or disposed of and he shall thereupon be registered
as the holder of the share, and shall not be bound to see to the
application of the purchase money, if any, nor shall his title to the share
be affected by any irregularity or invalidity in the proceedings in
reference to the forfeiture, sale or disposal of the share.
29. The provisions of these Articles as to forfeiture shall apply in the case
of non-payment of any sum which by the terms of issue of a share becomes
due and payable, whether on account of the amount of the share, or by way
of premium, as if the same had been payable by virtue of a call duly made
and notified.
TRANSFER OF SHARES
30. The instrument of transfer of any share shall be in any usual or common
form or such other form as the Directors may approve and executed by or on
behalf of the transferor and if in respect of a nil or partly paid share or
if so required by the Directors shall also be executed on behalf of the
transferee and shall be accompanied by the certificate of the shares to
which it relates and such other evidence as the Directors may reasonably
require to show the right of the transferor to make the transfer. The
transferor shall be deemed to remain a holder of the share until the name
of the transferee is entered in the Register of Members in respect thereof.
31. The Directors may in their absolute discretion decline to register any
transfer of shares without assigning any reason therefor. If the Directors
refuse to register a transfer of any shares, they shall within two months
after the date on which the transfer was lodged with the Company send to
the transferee notice of the refusal.
32. The registration of transfers may be suspended at such times and for such
periods as the Directors may from time to time determine, provided always
that such registration shall not be suspended for more than 45 days in any
year.
33. All instruments of transfer which shall be registered shall be retained by
the Company, but any instrument of transfer which the Directors may decline
to register shall (except in any case of fraud) be returned to the person
depositing the same.
TRANSMISSION OF SHARES
34. The legal personal representative of a deceased sole holder of a share
shall be the only person recognised by the Company as having any title to
the share. In the case of a share registered in the name of two or more
holders, the survivors or survivor, or the legal personal representatives
of the deceased survivor, shall be the only person recognised by the
Company as having any title to the share.
35. Any person becoming entitled to a share in consequence of the death or
bankruptcy of a Member shall upon such evidence being produced as may from
time to time be properly required by the Directors, have the right either
to be registered as a member in respect of the share or, instead of being
registered himself, to make such transfer of the share as the deceased or
bankrupt person could have made; but the Directors shall, in either case,
have the same right to decline or suspend registration as they would have
had in the case of a transfer of the share by the deceased or bankrupt
person before the death or bankruptcy.
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36. A person becoming entitled to a share by reason of the death or bankruptcy
of the holder shall be entitled to the same dividends and other advantages
to which he would be entitled if he were the registered holder of the
share, except that he shall not, before being registered as a Member in
respect of the share, be entitled in respect of it to exercise any right
conferred by membership in relation to meetings of the Company.
ALTERATION OF CAPITAL
37. The Company may from time to time by Ordinary Resolution increase the share
capital by such sum, to be divided into shares of such classes and amount,
as the resolution shall prescribe.
38. The Company may by Ordinary Resolution:
(a) consolidate and divide all or any of its share capital into shares of
larger amount than its existing shares;
(b) convert all or any of its paid up shares into stock and reconvert that
stock into paid up shares of any denomination;
(c) subdivide its existing shares, or any of them into shares of a smaller
amount provided that in the subdivision the proportion between the
amount paid and the amount, if any, unpaid on each reduced share shall
be the same as it was in case of the share from which the reduced
share is derived;
(d) cancel any shares which, at the date of the passing of the resolution,
have not been taken or agreed to be taken by any person and diminish
the amount of its share capital by the amount of the shares so
cancelled.
39. The Company may by Special Resolution reduce its share capital and any
capital redemption reserve in any manner authorised by law.
REDEMPTION AND PURCHASE OF OWN SHARES
40. Subject to the provisions of the Companies Law, the Company may:
(a) issue shares on terms that they are to be redeemed or are liable to be
redeemed at the option of the Company or the Member on such terms and
in such manner as the Directors may, before the issue of such shares,
determine;
(b) purchase its own shares (including any redeemable shares) on such
terms and in such manner as the Directors may determine and agree with
the Member; and
(c) make a payment in respect of the redemption or purchase of its own
shares otherwise than out of profits or the proceeds of a fresh issue
of shares.
41. Any share in respect of which notice of redemption has been given shall not
be entitled to participate in the profits of the Company in respect of the
period after the date specified as the date of redemption in the notice of
redemption.
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42. The redemption or purchase of any share shall not be deemed to give rise to
the redemption or purchase of any other share.
43. The Directors may when making payments in respect of redemption or purchase
of shares, if authorised by the terms of issue of the shares being redeemed
or purchased or with the agreement of the holder of such shares, make such
payment either in cash or in specie.
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
44. For the purpose of determining those Members that are entitled to receive
notice of, attend or vote at any meeting of Members or any adjournment
thereof, or those Members that are entitled to receive payment of any
dividend, or in order to make a determination as to who is a Member for any
other purpose, the Directors may provide that the Register of Members shall
be closed for transfers for a stated period but not to exceed in any case
40 days. If the Register of Members shall be so closed for the purpose of
determining those Members that are entitled to receive notice of, attend or
vote at a meeting of Members such register shall be so closed for at least
10 days immediately preceding such meeting and the record date for such
determination shall be the date of the closure of the Register of Members.
45. In lieu of or apart from closing the Register of Members, the Directors may
fix in advance a date as the record date for any such determination of
those Members that are entitled to receive notice of, attend or vote at a
meeting of the Members and for the purpose of determining those Members
that are entitled to receive payment of any dividend the Directors may, at
or within 90 days prior to the date of declaration of such dividend fix a
subsequent date as the record date for such determination.
46. If the Register of Members is not so closed and no record date is fixed for
the determination of those Members entitled to receive notice of, attend or
vote at a meeting of Members or those Members that are entitled to receive
payment of a dividend, the date on which notice of the meeting is posted or
the date on which the resolution of the Directors declaring such dividend
is adopted, as the case may be, shall be the record date for such
determination of Members. When a determination of those Members that are
entitled to receive notice of, attend or vote at a meeting of Members has
been made as provided in this section, such determination shall apply to
any adjournment thereof.
GENERAL MEETINGS
47. The Directors may, whenever they think fit, convene a general meeting of
the Company.
48. General meetings shall also be convened on the written requisition of any
Member or Members entitled to attend and vote at general meetings of the
Company who hold not less than 10 per cent of the paid up voting share
capital of the Company deposited at the registered office of the Company
specifying the objects of the meeting for a date no later than 21 days from
the date of deposit of the requisition signed by the requisitionists, and
if the Directors do not convene such meeting for a date not later than 45
days after the date of such deposit, the requisitionists themselves may
convene the general meeting in the same manner, as nearly as possible, as
that in which meetings may be convened by the Directors, and all reasonable
expenses incurred by the requisitionists as a result of the failure of the
Directors shall be reimbursed to them by the Company.
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49. If at any time there are no Directors of the Company, any two Members (or
if there is only one Member then that Member) entitled to vote at general
meetings of the Company may convene a general meeting in the same manner as
nearly as possible as that in which meetings may be convened by the
Directors.
NOTICE OF GENERAL MEETINGS
50. At least seven days notice counting from the date service is deemed to take
place as provided in these Articles specifying the place, the day and the
hour of the meeting and, in case of special business, the general nature of
that business, shall be given in manner hereinafter provided or in such
other manner (if any) as may be prescribed by the Company by Ordinary
Resolution to such persons as are, under these Articles, entitled to
receive such notices from the Company, but with the consent of all the
Members entitled to receive notice of some particular meeting and attend
and vote thereat, that meeting may be convened by such shorter notice or
without notice and in such manner as those Members may think fit.
51. The accidental omission to give notice of a meeting to or the non-receipt
of a notice of a meeting by any Member shall not invalidate the proceedings
at any meeting.
PROCEEDINGS AT GENERAL MEETINGS
52. All business carried out at a general meeting shall be deemed special with
the exception of sanctioning a dividend, the consideration of the accounts,
balance sheets, and ordinary report of the Directors and the Company's
auditors, and the appointment and removal of Directors and the fixing of
the remuneration of the Company's auditors. No special business shall be
transacted at any general meeting without the consent of all Members
entitled to receive notice of that meeting unless notice of such special
business has been given in the notice convening that meeting.
53. 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. Save
as otherwise provided by these Articles, one or more Members holding at
least a majority of the paid up voting share capital of the Company present
in person or by proxy shall be a quorum.
54. If within half an hour from the time appointed for the meeting a quorum is
not present, the meeting, if convened upon the requisition of Members,
shall be dissolved. In any other case it shall stand adjourned to the same
day in the next week, at the same time and place, and if at the adjourned
meeting a quorum is not present within half an hour from the time appointed
for the meeting the Member of Members present and entitled to vote shall be
a quorum.
55. The chairman, if any, of the Board of Directors shall preside as chairman
at every general meeting of the Company.
56. If there is no such chairman, or if at any meeting he is not present within
fifteen minutes after the time appointed for holding the meeting or is
unwilling to act as chairman, the Members present shall choose one of their
number to be chairman.
57. The chairman may with the consent of any meeting at which a quorum is
present (and shall if so directed by the meeting) adjourn a meeting from
time to time and from place to place, but no business shall be transacted
at any adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place. When a meeting is
9
adjourned for 10 days or more, notice of the adjourned meeting shall be
given as in the case of an original meeting. Save as aforesaid it shall not
be necessary to give any notice of an adjournment or of the business to be
transacted at an adjourned meeting.
58. At any general meeting a resolution put to the vote of the meeting shall be
decided on a show of hands, unless a poll is (before or on the declaration
of the result of the show of hands) demanded by one or more Members present
in person or by proxy entitled to vote and who together hold not less than
10 per cent of the paid up voting share capital of the Company, and 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 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, that resolution.
59. If a poll is duly demanded it shall be taken in such manner as the chairman
directs, and the result of the poll shall be deemed to be the resolution of
the meeting at which the poll was demanded.
60. 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.
61. A poll demanded on the election of a chairman or on a question of
adjournment shall be taken forthwith. A poll demanded on any other question
shall be taken at such time as the chairman of the meeting directs.
VOTES OF MEMBERS
62. Subject to any rights and restrictions for the time being attached to any
class or classes of shares, on a show of hands every Member present in
person and every person representing a Member by proxy shall at a general
meeting of the Company have one vote and on a poll every Member and every
person representing a Member by proxy shall have one vote for each share of
which he or the person represented by proxy is the holder.
63. 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 joint holders and for this purpose seniority shall be
determined by the order in which the names stand in the Register of
Members.
64. A Member of unsound mind, or in respect of whom an order has been made by
any court having jurisdiction in lunacy, may vote, whether on a show of
hands or on a poll, by his committee, or other person in the nature of a
committee appointed by that court and any such committee or other person,
may on a poll, vote by proxy.
65. No Member shall be entitled to vote at any general meeting unless all calls
or other sums presently payable by him in respect of shares in the Company
have been paid.
66. On a poll votes may be given either personally or by proxy.
67. The instrument appointing a proxy shall be in writing under the hand of the
appointor or of his attorney duly authorised in writing or, if the
appointor is a corporation, either under seal
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or under the hand of an officer or attorney duly authorised. A proxy need
not be a Member of the Company.
68. An instrument appointing a proxy may be in any usual or common form or
such other form as the Directors may approve.
69. The instrument appointing a proxy shall be deemed to confer authority to
demand or join in demanding a poll.
70. A resolution in writing signed by all the Members for the time being
entitled to receive notice of and to 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 convened and held.
CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS
71. Any corporation which is a Member or a Director may by resolution of its
directors or other governing body authorise such person as it thinks fit to
act as its representative at any meeting of the Company or of any class of
Members or of the Board of Directors or of a committee of Directors, and
the person so authorised shall be entitled to exercise the same powers on
behalf of the corporation which he represents as that corporation could
exercise if it were an individual Member or Director.
DIRECTORS
72. The name of the first Director(s) shall either be determined in writing by
a majority (or in the case of a sole subscriber that subscriber) of, or
elected at a meeting of, the subscribers of the Memorandum of Association.
73. The Company may by Ordinary Resolution appoint any person to be a Director.
74. Subject to the provisions of these Articles, a Director shall hold office
until such time as he is removed from office by the Company by Ordinary
Resolution.
75. The Company may by Ordinary Resolution from time to time fix the maximum
and minimum number of Directors to be appointed but unless such number is
fixed as aforesaid the number of Directors shall be unlimited.
76. The remuneration of the Directors shall from time to time be determined by
the Company by Ordinary Resolution.
77. The shareholding qualification for Directors may be fixed by the Company
by Ordinary Resolution and unless and until so fixed no share qualification
shall be required.
78. The Directors shall have power at any time and from time to time appoint a
person as Director, either as a result of a casual vacancy or as an
additional Director, subject to the maximum number (if any) imposed by the
Company by Ordinary Resolution.
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ALTERNATE DIRECTOR
79. Any Director may in writing appoint another person to be his alternate to
act in his place at any meeting of the Directors at which he is unable to
be present. Every such alternate shall be entitled to notice of meetings of
the Directors and to attend and vote thereat as a Director when the person
appointing him is not personally present and where he is a Director to have
a separate vote on behalf of the Director he is representing in addition to
his own vote. A Director may at any time in writing revoke the appointment
of an alternate appointed by him. Such alternate shall not be an officer
of the Company and shall be deemed to be the agent of the Director
appointing him. The remuneration of such alternate shall be payable out of
the remuneration of the Director appointing him and the proportion thereof
shall be agreed between them.
80. Any Director may appoint any person, whether or not a Director, to be the
proxy of that Director to attend and vote on his behalf, in accordance with
instructions given by that Director, or in the absence of such instructions
at the discretion of the proxy, at a meeting or meetings of the Directors
which that Director is unable to attend personally. The instrument
appointing the proxy shall be in writing under the hand of the appointing
Director and shall be in any usual or common form or such other form as the
Directors may approve, and must be lodged with the chairman of the meeting
of the Directors at which such proxy is to be used, or first used, prior to
the commencement of the meeting.
POWERS AND DUTIES OF DIRECTORS
81. Subject to the provisions of the Companies Law, these Articles and to any
resolutions made in a general meeting, the business of the Company shall be
managed by the Directors, who may pay all expenses incurred in setting up
and registering the Company and may exercise all powers of the Company. No
resolution made by the Company in general meeting shall invalidate any
prior act of the Directors which would have been valid if that resolution
had not been made.
82. The Directors may from time to time appoint any person, whether or not
a director of the Company to hold such office in the Company as the
Directors may think necessary for the administration of the Company,
including without prejudice to the foregoing generality, the office of
President, one or more Vice-Presidents, Treasurer, Assistant Treasurer,
Manager or Controller, and for such term and at such remuneration (whether
by way of salary or commission or participation in profits or partly in one
way and partly in another), and with such powers and duties as the
Directors may think fit. The Directors may also appoint one or more of
their number to the office of Managing Director upon like terms, but any
such appointment shall ipso facto determine if any Managing Director ceases
from any cause to be a Director, or if the Company by Ordinary Resolution
resolves that his tenure of office be terminated.
83. The Directors may appoint the Company Secretary (and if need be an
Assistant Secretary or Assistant Secretaries) who shall hold office for
such term, at such remuneration and upon such conditions and with such
powers as they think fit. Any Secretary or Assistant Secretary so appointed
by the Directors may be removed by the Directors.
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84. The Directors may delegate any of their powers to committees consisting of
such member or members of their body as they think fit: any committee so
formed shall in the exercise of the powers so delegated conform to any
regulations that may be imposed on it by the Directors.
85. The Directors may from time to time and at any time by power of attorney
appoint any company, firm or person or body of persons, whether nominated
directly or indirectly by the Directors, to be the attorney or attorneys of
the Company for such purposes and with such powers, authorities and
discretion (not exceeding those vested in or exercisable by the Directors
under these Articles) and for such period and subject to such conditions as
they may think fit, and any such power of attorney may contain such
provisions for the protection and convenience of persons dealing with any
such attorney as the Directors may think fit, and may also authorise any
such attorney to delegate all or any of the powers, authorities and
discretion vested in him.
86. The Directors may from, time to time provide for the management of the
affairs of the Company in such manner as they shall think fit and the
provisions contained in the three next following paragraphs shall be
without prejudice to the general powers conferred by this paragraph.
87. The Directors from time to time and at any time may establish any
committees, local boards or agencies for managing any of the affairs of the
company and may appoint any persons to be members of such committees or
local boards and may appoint any managers or agents of the Company and may
fix the remuneration of any of the aforesaid.
88. The Directors from time to time and at any time may delegate to any such
committee, local board, manager or agent any of the powers, authorities and
discretions for the time being vested in the Directors and may authorise
the members for the time being of any such local board, or any of them to
fill up any vacancies therein and to act notwithstanding vacancies and any
such appointment or delegation may be made on such terms and subject to
such conditions as the Directors may think fit and the Directors may at any
time remove any person so appointed and may annul or vary any such
delegation, but no person dealing in good faith and without notice of any
such annulment or variation shall be affected thereby.
89. Any such delegates aforesaid may be authorised by the Directors to
subdelegate all or any of the powers, authorities, and discretion for the
time being vested to them.
BORROWING POWERS OF DIRECTORS
90. 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, to issue debentures, debenture stock and other securities
whenever money is borrowed or as security for any debt, liability or
obligation of the Company or of any third party.
THE SEAL
91. The Seal of the Company shall not be affixed to any instrument except by
the authority of a resolution of the Board of Directors provided always
that such authority may be given prior to or after the affixing of the Seal
and if given after may be in general form confirming a number of affixings
of the Seal. The Seal shall be affixed in the presence of a Director or the
Secretary (or an Assistant Secretary) of the Company or in the presence of
any one or more
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persons as the Directors may appoint for the purpose and every person as
aforesaid shall sign every instrument to which the Seal of the Company is
so affixed in their presence.
92. The Company may maintain a facsimile of its Seal in such countries or
places as the Directors may appoint and such facsimile Seal shall not be
affixed to any instrument except by the authority of a resolution of the
Board of Directors provided always that such authority may be given prior
to or after the affixing of such facsimile Seal and if given after may be
in general form confirming a number of affixings of such facsimile Seal.
The facsimile Seal shall be affixed in the presence of such person or
persons as the Directors shall for this purpose appoint and such person or
persons as aforesaid shall sign every instrument to which the facsimile
Seal of the Company is so affixed in their presence and such affixing of
the facsimile Seal and signing as aforesaid shall have the same meaning and
effect as if the Company Seal had been affixed in the presence of and the
instrument signed by a Director or the Secretary (or an Assistant
Secretary) of the Company or in the presence of any one or more persons as
the Directors may appoint for the purpose.
93. Notwithstanding the foregoing, the Secretary or any Assistant Secretary
shall have the authority to affix the Seal, or the facsimile Seal, to any
instrument for the purposes of attesting authenticity of the matter
contained therein but which does not create any obligation binding on the
Company.
DISQUALIFICATION OF DIRECTORS
94. The office of Director shall be vacated, if the Director:
(a) becomes bankrupt or makes any arrangement or composition with his
creditors;
(b) is found to be or becomes of unsound mind; or
(c) resigns his office by notice in writing to the Company.
PROCEEDINGS OF DIRECTORS
95. The Directors may meet together (either within or without the Cayman
Islands) for the despatch of business, adjourn, and otherwise regulate
their meetings and proceedings as they think fit. Questions arising at any
meeting shall be decided by a majority of votes. In case of an equality of
votes the chairman shall have a second or casting vote. A Director may, and
the Secretary or Assistant Secretary on the requisition of a Director
shall, at any time summon a meeting of the Directors.
96. A Director or Directors may participate in any meeting of the Board of
Directors, or of any committee appointed by the Board of Directors of which
such Director or Directors are members, by means of telephone or similar
communication equipment by way of which all persons participating in such
meeting can hear each other and such participation shall be deemed to
constitute presence in person at the meeting.
97. The quorum necessary for the transaction of the business of the Directors
may be fixed by the Directors, and unless so fixed, if there be more than
two Directors shall be two, and if there be two or less Directors shall be
one. A Director represented by proxy or by an Alternate
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Director at any meeting shall be deemed to be present for the purposes of
determining whether or not a quorum is present.
98. A Director who is in any way, whether directly or indirectly, interested in
a contract or proposed contract with the Company shall declare the nature
of his interest at a meeting of the Directors. A general notice given to
the Directors by any Director to the effect that he is a member of any
specified company or firm and is to be regarded as interested in any
contract which may thereafter be made with that company or firm shall be
deemed a sufficient declaration of interest in regard to any contract so
made. A Director may vote in respect of any contract or proposed contract
or arrangement notwithstanding that he may be interested therein and if he
does so his vote shall be counted and he may be counted in the quorum at
any meeting of the Directors at which any such contract or proposed
contract or arrangement shall come before the meeting for consideration.
99. A Director may hold any other office or place of profit under the Company
(other than the office of auditor) in conjunction with his office of
Director for such period on such terms (as to remuneration and otherwise)
as the Directors may determine and no Director or intending Director shall
be disqualified by his office from contracting with the Company either with
regard to his tenure of any such other office or place of profit or as
vendor, purchaser or otherwise, nor shall any such contract or arrangement
entered into by or on behalf of the Company in which any Director is in any
way interested, be liable to be avoided, nor shall any Director so
contracting or being so interested be liable to account to the Company for
any profit realised by any such contract or arrangement by reason of such
Director holding that office or of the fiduciary relation thereby
established. A Director, notwithstanding his interest, may be counted in
the quorum present at any meeting whereat he or any other Director is
appointed to hold any such office or place of profit under the Company or
whereat the terms of any such appointment are arranged and he may vote on
any such appointment or arrangement.
100. Any Director may act by himself or his firm in a professional capacity for
the Company, and he or his firm shall be entitled to remuneration for
professional services as if he were not a Director; provided that nothing
herein contained shall authorise a Director or his firm to act as auditor
to the Company.
101. The Directors shall cause minutes to be made in books or loose-leaf folders
provided for the purpose of recording:
(a) all appointments of officers made by the Directors;
(b) the names of the Directors present at each meeting of the Directors
and of any committee of the Directors;
(c) all resolutions and proceedings at all meetings of the Company, and of
the Directors and of committees of Directors.
102. When the chairman of a meeting of the Directors signs the minutes of such
meeting the same shall be deemed to have been duly held notwithstanding
that all the Directors have not actually come together or that there may
have been a technical defect in the proceedings.
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103. A resolution 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
constituted. When signed a resolution may consist of several documents
each signed by one or more of the Directors.
104. 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 the Articles of the Company as the necessary quorum of
Directors, the continuing Directors may act for the purpose of increasing
the number, or of summoning a general meeting of the Company, but for no
other purpose.
105. The Directors may elect a chairman of their meetings and determine the
period for which he is to hold office but if no such chairman is elected,
or if at any meeting the chairman is not present within fifteen minutes
after the time appointed for holding the same, the Directors present may
choose one of their number to be chairman of the meeting.
106. A committee appointed by the Directors may elect a chairman of its
meetings. If no such chairman is elected, or if at any meeting the
chairman is not present within five minutes after the time appointed for
holding the same, the members present may choose one of their number to be
chairman of the meeting.
107. A committee appointed by the Directors may meet and adjourn as it thinks
proper. Questions arising at any meeting shall be determined by a majority
of votes of the committee members present and in case of an equality of
votes the chairman shall have a second or casting vote.
108. All acts done by any meeting of the Directors or of a committee of
Directors, or by any person acting as a Director, shall notwithstanding
that it be afterwards discovered that there was some defect in the
appointment of any such Director or person acting as aforesaid, or that
they or any of them were disqualified, be as valid as if every such person
had been duly appointed and was qualified to be a Director.
DIVIDENDS
109. Subject to any rights and restrictions for the time being attached to any
class or classes of shares, the Directors may from time to time declare
dividends (including interim dividends) and other distributions on shares
in issue and authorise payment of the same out of the funds of the Company
lawfully available therefor.
110. Subject to any rights and restrictions for the time being attached to any
class or classes of shares, the Company by Ordinary Resolution may declare
dividends, but no dividend shall exceed the amount recommended by the
Directors.
111. The Directors may, before recommending or declaring any dividend, set
aside out of the funds legally available for distribution such sums as
they think proper as a reserve or reserves which shall, at the discretion
of the Directors be applicable for meeting contingencies, or for
equalising dividends or for any other purpose to which those funds be
properly applied and pending such application may, at the like discretion,
either be employed in the business of the Company or be invested in such
investments (other than shares of the Company) as the Directors may from
time to time think fit.
112. Any dividend may be paid by cheque or warrant sent through the post to the
registered address of the Member or person entitled thereto, or in the
case of joint holders, to any one
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of such joint holders at his registered address or to such person and such
address as the Member or person entitled, or such joint holders as the case
may be, may direct. Every such cheque or warrant shall be made payable to
the order of the person to whom it is sent or to the order of such other
person as the Member or person entitled, or such joint holders as the case
may be, may direct.
113. The Directors when paying dividends to the Members in accordance with the
foregoing provisions may make such payment either in cash or in specie.
114. No dividend shall be paid otherwise than out of profits or, subject to the
restrictions of the Companies Law, the share premium account.
115. Subject to the rights of persons, if any, entitled to shares with special
rights as to dividends, all dividends shall be declared and paid according
to the amounts paid on the shares, but if and so long as nothing is paid up
on any of the shares in the Company dividends may be declared and paid
according to the amounts of the shares. No amount paid on a share in
advance of calls shall, while carrying interest, be treated for the
purposes of this Article as paid on the share.
116. If several persons are registered as joint holders of any share, any of
them may give effectual receipts for any dividend or other moneys payable
on or in respect of the share.
117. No dividend shall bear interest against the Company.
ACCOUNTS AND AUDIT
118. The books of account relating to the Company's affairs shall be kept in
such manner as may be determined from time to time by the Directors.
119. The books of account shall be kept at the registered office of the Company,
or at such other place or places as the Directors think fit, and shall
always be open to the inspection of the Directors.
120. 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 conferred by law or authorised by the
Directors or by the Company by Ordinary Resolution.
121. The accounts relating to the Company's affairs shall be audited in such
manner and with such financial year end as may be determined from time to
time by the Company by Ordinary Resolution or failing any such
determination by the Directors or failing any determination as aforesaid
shall not be audited.
CAPITALISATION OF PROFITS
122. Subject to the Companies Law, the Board may, with the authority of an
Ordinary Resolution:
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(a) resolve to capitalise an amount standing to the credit of reserves
(including a share premium account, capital redemption reserve and
profit and loss account), whether or not available for distribution:
(b) appropriate the sum resolved to be capitalised to the Members in
proportion to the nominal amount of shares (whether or not fully paid)
held by them respectively and apply that sum on their behalf in or
towards:
(i) paying the amounts (if any) for the time being unpaid on shares
held by them respectively, or
(ii) paying up in full unissued shares or debentures of a nominal
amount equal to that sum,
and allot the shares or debentures, credited as fully paid, to the
Members (or as they may direct) in those proportions, or partly in one
way and partly in the other, but the share premium account, the
capital redemption reserve and profits which are not available for
distribution may, for the purposes of this Article, only be applied in
paying up unissued shares to be allotted to members credited as fully
paid;
(c) make any arrangements it thinks fit to resolve a difficulty arising in
the distribution of a capitalised reserve and in particular, without
limitation, where shares or debentures become distributable in
fractions the Board may deal with the fractions as it thinks fit;
(d) authorise a person to enter (on behalf of all the Members concerned)
an agreement with the Company providing for either:
(i) the allotment to the members respectively, credited as fully
paid, of shares or debentures to which they may be entitled on
the capitalisation, or
(ii) the payment by the Company on behalf of the Members (by the
application of their respective proportions of the reserves
resolved to be capitalised) of the amounts or part of the amounts
remaining unpaid on their existing shares.
an agreement made under the authority being effective and binding on
all those Members; and
(e) generally do all acts and things required to give effect to the
resolution.
SHARE PREMIUM ACCOUNT
123. The Board of Directors shall in accordance with Section 34 of the Companies
Law establish a share premium account and shall carry to the credit of such
account from time to time a sum equal to the amount or value of the premium
paid on the issue of any share.
124. There shall be debited to any share premium account on the redemption or
purchase of a share the difference between the nominal value of such share
and the redemption or purchase price provided always that at the discretion
of the Board of Directors such sum may be paid out of
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the profits of the Company or, if permitted by Section 37 of the Companies
Law, out of capital.
NOTICES
125. Any notice or document may be served by the Company or by the person
entitled to give notice to any Member either personally, by facsimile or
by sending it through the post in a prepaid letter or via a recognised
courier service, fees prepaid, addressed to the Member at his address as
appearing in the Register of Members. In the case of joint holders of a
share, all notices shall be given to that one of the joint holders whose
name stands first in the Register of Members in respect of the joint
holding, and notice so given shall be sufficient notice to all the joint
holders.
126. Notices posted to addresses outside the Cayman Islands shall be forwarded
by prepaid airmail.
127. Any Member present, either personally or by proxy, at any meeting of the
Company shall for all purposes be deemed to have received due notice of
such meeting and, where requisite, of the purposes for which such meeting
was convened.
128. Any notice or other document, if served by (a) post, shall be deemed to
have been served five days after the time when the letter containing the
same is posted and if served by courier, shall be deemed to have been
served five days after the time when the letter containing the same is
delivered to the courier (in proving such service it shall be sufficient to
prove that the letter containing the notice or document was properly
addressed and duly posted or delivered to the courier), or, (b) facsimile,
shall be deemed to have been served upon confirmation of receipt or (c)
recognised delivery service, shall be deemed to have been served 48 hours
after the time when the letter containing the same is delivered to the
courier service and in proving such service it shall be sufficient to prove
that the letter containing the notice or documents was properly addressed
and duly posted or delivered to the courier.
129. Any notice or document delivered or sent by post to or left at the
registered address of any Member in accordance with the terms of these
Articles shall notwithstanding that such Member be then dead or bankrupt,
and whether or not the Company has notice of his death or bankruptcy, be
deemed to have been duly served in respect of any share registered in the
name of such Member as sole or joint holder, unless his name shall at the
time of the service of the notice or document, have been removed from the
Register of Members as the holder of the share, and such service shall for
all purposes be deemed a sufficient service of such notice or document on
all persons interested (whether jointly with or as claiming through or
under him) in the share.
130. Notice of every general meeting shall be given to:
(a) all Members who have supplied to the Company an address for the giving
of notices to them; and
(b) every person entitled to a share in consequence of the death or
bankruptcy of a Member, who but for his death or bankruptcy would be
entitled to receive notice of the meeting.
No other person shall be entitled to receive notices of general meetings.
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INDEMNITY
131. Every Director (including for the purposes of this Article any Alternate
Director appointed pursuant to the provisions of these Articles). Managing
Director, agent, Secretary, Assistant Secretary, or other officer for the
time being and from time to time of the Company (but not including the
Company's auditor) and the personal representatives of the same shall be
indemnified and secured harmless out of the assets and funds of the Company
against 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 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.
132. No such Director, Alternate Director, Managing Director, agent, Secretary,
Assistant Secretary or other officer of the Company (but not including the
Company's auditor) shall be liable (i) for the acts, receipts, neglects,
defaults or omissions of any other such director or officer or agent 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 judgement 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.
NON-RECOGNITION OF TRUSTS
133. No person shall be recognised by the Company as holding any share upon any
trust and the Company shall not, unless required by law, be bound by or be
compelled in any way to recognise (even when having notice thereof) any
equitable, contingent or future interest in any of its shares or any other
rights in respect thereof except an absolute right to the entirety thereof
in each Member registered in the Register of Members.
WINDING UP
134. If the Company shall be wound up the liquidator may, with the sanction of
an Ordinary Resolution of the Company divide amongst the Members in specie
or kind the whole or any part of the assets of the Company (whether they
shall consist of property of the same kind or not) and may, for such
purpose set such value as he deems fair upon any property to be divided as
aforesaid and may determine how such division shall be carried out as
between the Members or different classes of Members. The liquidator may,
with the like sanction, vest the whole or any part of such assets in
trustees upon such trusts for the benefit of the contributories as the
liquidator, with the like sanction shall think fit, but so that no Member
shall be compelled to accept any shares or other securities whereon there
is any liability.
20
AMENDMENT OF ARTICLES OF ASSOCIATION
135. Subject to the Companies Law and the rights attaching to the various
classes of shares, the Company may at any time and from time to time by
Special Resolution alter or amend these Articles in whole or in part.
REGISTRATION BY WAY OF CONTINUATION
136. The Company may by Special Resolution resolve to be registered by way of
continuation in a jurisdiction outside the Cayman Islands or such other
jurisdiction in which it is for the time being incorporated, registered or
existing. In furtherance of a resolution adopted pursuant to this Article,
the Directors may cause an application to be made to the Registrar of
Companies to deregister the Company in the Cayman Islands or such other
jurisdiction in which it is for the time being incorporated, registered or
existing and may cause all such further steps as they consider appropriate
to be taken to effect the transfer by way of continuation of the Company.
21
_______________________________________________________________________________
NAME, ADDRESS AND DESCRIPTION
OF SUBSCRIBER
_______________________________________________________________________________
JONATHAN CULSHAW
P.O. Box 265GT,
Grand Cayman
(Sgd.) JONATHAN CULSHAW
_______________________
JONATHAN CULSHAW
Attorney-at-Law
3 April 2001
(Sgd.): PAULA SHEAFF
____________________________________________
Witness to the above signature: PAULA SHEAFF
Address: P.O. Box 265GT, Grand Cayman
Occupation: Secretary
I, DONNELL H. DIXON, Asst, Registrar of Companies, in and for the Cayman
Islands, DO HEREBY CERTIFY that this is a true copy of the Articles of
Association of VALE OVERSEAS LIMITED
Dated this 3rd of April, 2001.
/s/ DONNELL H. DIXON
____________________
[REGISTRAR OF COMPANIES
EXEMPTED
CAYMAN ISLANDS STAMP]
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