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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): December 31, 1999
TRANSOCEAN SEDCO FOREX INC.
(Exact Name of Registrant as Specified in its Charter)
CAYMAN ISLANDS 1-7746 N/A
(State or other jurisdiction of (Commission File Number) (IRS Employer
incorporation or organization) Identification No.)
4 GREENWAY PLAZA
HOUSTON, TEXAS 77046
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (713) 232-7500
TRANSOCEAN OFFSHORE INC.
(Former name or former address, if changed since last report)
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INFORMATION TO BE INCLUDED IN THE REPORT
Item 2. Acquisition or Disposition of Assets.
On December 31, 1999 at 1:00 a.m. Houston time (the "Effective Time"),
Transocean Offshore Inc. ("Transocean") completed its merger with Sedco Forex
Holdings Limited ("Sedco Forex"), the former offshore contract drilling business
of Schlumberger Limited ("Schlumberger"), following the spin-off of Sedco Forex
to Schlumberger stockholders on December 30, 1999. Under the terms of an
Agreement and Plan of Merger dated as of July 12, 1999 among Schlumberger, Sedco
Forex, Transocean and Transocean SF Limited, a wholly owned Transocean
subsidiary, Transocean SF Limited merged with and into Sedco Forex, and
Schlumberger stockholders exchanged all of the Sedco Forex shares distributed by
Schlumberger in the Sedco Forex spin-off for ordinary shares of Transocean. At
an Extraordinary General Meeting of Shareholders held on December 10, 1999,
Transocean shareholders approved, among other things, the issuance of the
Transocean ordinary shares required to consummate the merger with Sedco Forex.
Effective upon the merger, Transocean changed its name to "Transocean Sedco
Forex Inc."
At the Effective Time of the merger, Sedco Forex owned, had an ownership in
or operated 40 mobile offshore drilling rigs. Sedco Forex's fleet consists of
three fourth-generation semisubmersibles, twenty second- and third-generation
semisubmersibles, one first-generation semisubmersible, two drillships, ten
jackup rigs and four tenders, as well as one multi-purpose service jackup rig,
six swamp barges and two land drilling rigs. Sedco Forex also has under
construction three Sedco Express-class semisubmersibles and one independent-leg
cantilevered jackup rig. Sedco Forex contracts these drilling rigs, related
equipment and work crews primarily on a day rate basis to drill oil and gas
wells. Transocean Sedco Forex will continue to use Sedco Forex's assets in
substantially the same manner in its worldwide offshore contract drilling
business.
Pursuant to the terms of the merger agreement, Schlumberger stockholders
received 0.1936 ordinary shares of Transocean for each share of capital stock of
Sedco Forex distributed in the spin-off of Sedco Forex (the "Merger Ratio"). On
December 30, 1999, the closing price on the New York Stock Exchange of
Transocean ordinary shares was $32-15/16 per share. Transocean issued
109,551,558 ordinary shares to Schlumberger stockholders in the merger, and
issued an additional 145,102 ordinary shares that were sold on the market for
cash paid in lieu of fractional shares. The Merger Ratio was determined through
arm's-length negotiations. Prior to the merger, (i) Transocean received the
written opinion from its independent financial advisors that, as of the date of
such opinion, the Merger Ratio was fair to Transocean and its shareholders from
a financial point of view, and (ii) Schlumberger received the written opinion of
its independent financial advisors that, as of the date of such opinion, the
Merger Ratio was fair to Schlumberger's stockholders from a financial point of
view, as if they were current holders of the shares of Sedco Forex capital
stock. Transocean will account for the merger using the purchase method of
accounting, with Sedco Forex treated as the acquiror.
On December 31, 1999 following the Effective Time, Sedco Forex repaid
indebtedness to Schlumberger in the aggregate amount of US$ 303.6 million with
the proceeds of an intercompany loan from Transocean to Sedco Forex. Transocean
borrowed the amount it required to fund this advance under a US $400 million
revolving credit facility with a group of financial institutions led by SunTrust
Bank, Atlanta.
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Upon completion of the merger, Jean P. Cahuzac, formerly President of Sedco
Forex, was appointed Executive Vice President and President, Europe, Middle East
and Africa of Transocean Sedco Forex, David Mullen, formerly Director of
Personnel for Geco Prakla, a unit of Schlumberger, was appointed Vice President,
Human Resources of Transocean Sedco Forex, and Ricardo Rosa, formerly the
Controller of Sedco Forex, was appointed Vice President and Controller of
Transocean Sedco Forex. In addition, Victor E. Grijalva, who is currently Vice
Chairman of Schlumberger, and Arthur Lindenauer, who is currently a Senior
Advisor of Schlumberger and President of Schlumberger Technology Corporation,
were elected to the Transocean Sedco Forex board of directors. Under the merger
agreement, Transocean agreed to use its reasonable best efforts to maintain a 50
percent allocation of directorships of Transocean Sedco Forex for Schlumberger
designees and to maintain the initial appointments thereunder for a period of
three years following the merger. Pursuant to the merger agreement, Mr.
Grijalva was appointed Chairman of the Board of Transocean Sedco Forex and
entered into a consulting agreement with Transocean Sedco Forex.
A copy of Transocean's press release dated December 31, 1999 announcing the
merger closing described above is attached to this report as Exhibit 99.1 and is
incorporated by this reference in this report.
Item 5. Other Events.
On December 29, 1999, Transocean filed the necessary documents under Cayman
Islands law to change its name from "Transocean Offshore Inc." to "Transocean
Sedco Forex Inc." Transocean's shareholders adopted a proposal for such name
change at the Extraordinary General Meeting of Shareholders held on December 10,
1999.
Item 7. Financial Statements and Exhibits.
(a) Transocean will file the financial statements required for this item
by an amendment to be filed not later than 60 days after January 15, 2000.
(b) Transocean will file the pro forma financial information required for
this item by an amendment to be filed not later than 60 days after January 15,
2000.
(c) Exhibits.
Exhibit No. Description
----------- -----------
*2.1 --Agreement and Plan of Merger (incorporated by reference to
Annex A to the Joint Proxy Statement/Prospectus dated October
27, 1999 included in Transocean's Registration Statement on
Form S-4 (Registration No. 333-89727))
*2.2 --Distribution Agreement (incorporated by reference to Annex B
to the Joint Proxy Statement/Prospectus dated October 27,
1999 included in Transocean's Registration Statement on Form
S-4 (Registration No. 333-89727))
4.1 --Memorandum of Association of Transocean Sedco Forex Inc., as
amended
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4.2 --Articles of Association of Transocean Sedco Forex Inc., as
amended
99.1 --Transocean Press Release dated December 31, 1999
99.2 --Certificate of Incorporation on Change of Name to Transocean
Sedco Forex Inc.
99.3 --Certificate of Merger
_______________________
* Incorporated by reference as indicated.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TRANSOCEAN SEDCO FOREX INC.
By: /s/ Nicolas J. Evanoff
-------------------------
Nicolas J. Evanoff
Assistant Secretary
Date: January 12, 2000
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EXHIBIT INDEX
Exhibit No. Description
----------- -----------
*2.1 --Agreement and Plan of Merger (incorporated by reference to
Annex A to the Joint Proxy Statement/Prospectus dated October
27, 1999 included in Transocean's Registration Statement on
Form S-4 (Registration No. 333-89727))
*2.2 --Distribution Agreement (incorporated by reference to Annex B
to the Joint Proxy Statement/Prospectus dated October 27,
1999 included in Transocean's Registration Statement on Form
S-4 (Registration No. 333-89727))
4.1 --Memorandum of Association of Transocean Sedco Forex Inc., as
amended
4.2 --Articles of Association of Transocean Sedco Forex Inc., as
amended
99.1 --Transocean Press Release dated December 31, 1999
99.2 --Certificate of Incorporation on Change of Name to Transocean
Sedco Forex Inc.
99.3 --Certificate of Merger
_______________________
* Incorporated by reference as indicated.
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EXHIBIT 4.1
THE COMPANIES LAW
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
TRANSOCEAN SEDCO FOREX INC.
1. The name of the company is Transocean Sedco Forex Inc. (the "Company").
2. The Registered Office of the Company shall be situated at the offices
of W. S. Walker & Company, Walker House, P.O. Box 265, George Town, Grand
Cayman, Cayman Islands, or at such other place as the Board of Directors may
from time to time determine.
3. The objects for which the Company is established are unrestricted and
the Company shall have full power and authority to carry out any objective not
prohibited by any law as provided by Section 7(4) of the Companies Law (1998
Revision), as may be amended, modified or re-enacted from time to time (the
"Statute").
4. Except as prohibited or limited by the Statute, the Company shall have
full power and authority to carry out any object and shall have and be capable
of from time to time and at all times exercising any and all of the powers at
any time or from time to time exercisable by a natural person or body corporate
in doing in any part of the world whether as principal, agent, contractor, or
otherwise whatever may be considered by it necessary or desirable for the
attainment of its objects and whatever else may be considered by it as
incidental or conducive thereto or consequential thereof, including, but without
in any way restricting the generality of the foregoing, the power to make any
alterations or amendments to this Memorandum of Association and the Articles of
Association of the Company considered necessary or convenient in the manner set
out in the Articles of Association of the Company all irrespective of any
question of corporate benefit.
5. The liability of each member is limited to the amount, if any, from
time to time unpaid on such member's shares.
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6. The share capital of the Company is US$8,000,000, divided into
300,000,000 Ordinary Shares of a nominal or par value of US$0.01 per share, and
50,000,000 shares of a nominal or par value of U.S. $0.10 per share, which may
be designated and created as shares of any other classes or series of shares
with the respective rights and restrictions determined upon the creation
thereof by action of the Board of Directors, with power for the Company insofar
as is permitted by law, to redeem, call or purchase any of its shares and to
increase or reduce the said capital subject to the provisions of the Statute and
the Articles of Association and to issue any part of its capital, whether
original, redeemed, called or increased with or without any preference, priority
or special privilege or subject to any postponement of rights or to any
conditions or restrictions and so that unless the conditions of issue shall
otherwise expressly declare every issue of shares whether declared to be
ordinary, preference or otherwise shall be subject to the powers hereinabove
contained.
7. The Company may exercise the power contained in Section 224 of The
Companies Law to deregister in the Cayman Islands and be registered by way of
continuation in some other jurisdiction.
8. Nothing in the preceding sections shall be deemed to permit the Company
to carry on the business of a Bank or Trust Company without being licensed in
that behalf under the provisions of the Banks & Trust Companies Law (1995
Revision) as may be amended, modified or re-enacted from time to time, or to
carry on Insurance Business from within the Cayman Islands or the business of an
Insurance Manager, Agent, Sub-agent or Broker without being licensed in that
behalf under the provisions of the Insurance Law (1995 Revision) as may be
amended, modified or re-enacted from time to time, or to carry on the business
of Company Management without being licensed in that behalf under the provisions
of the Companies Management Law (1996 Revision) as may be amended, modified or
re-enacted from time to time.
9. The Company will not trade in the Cayman Islands with any person, firm
or company except in furtherance of the business of the Company carried on
outside the Cayman Islands; provided that nothing in this section shall be
construed as to prevent the Company 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.
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EXHIBIT 4.2
THE COMPANIES LAW
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
TRANSOCEAN SEDCO FOREX INC.
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Table of Contents
<TABLE>
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Page
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I. INTERPRETATION........................................................................................... 1
II. CERTIFICATES FOR SHARES.................................................................................. 2
III. ISSUE OF SHARES.......................................................................................... 3
IV. ORDINARY SHARES.......................................................................................... 4
V. OTHER CLASSES OR SERIES OF SHARES........................................................................ 4
VI. VARIATION OF RIGHTS OF SHARES............................................................................ 5
VII. REDEMPTION AND REPURCHASE................................................................................ 6
VIII. TRANSFER OF SHARES....................................................................................... 6
IX. NONRECOGNITION OF TRUSTS................................................................................. 7
X. LIEN ON SHARES........................................................................................... 7
XI. CALL ON SHARES........................................................................................... 8
XII. FORFEITURE OF SHARES..................................................................................... 9
XIII. TRANSMISSION OF SHARES ON DEATH OR BANKRUPTCY............................................................ 10
XIV. AMENDMENT OF MEMORANDUM OF ASSOCIATION, CHANGE OF LOCATION OF REGISTERED OFFICE AND ALTERATION OF CAPITAL 11
XV. CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE........................................................ 11
XVI. VOTING................................................................................................... 12
XVII. GENERAL MEETINGS......................................................................................... 13
XVIII. NOTICE OF GENERAL MEETINGS............................................................................... 13
XIX. PROCEEDINGS AT GENERAL MEETINGS.......................................................................... 14
XX. PROXIES.................................................................................................. 17
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
XXI. DIRECTORS................................................................................................ 18
XXII. POWERS AND DUTIES OF DIRECTORS........................................................................... 21
XXIII. COMMITTEES............................................................................................... 22
XXIV. PROCEEDINGS OF DIRECTORS................................................................................. 23
XXV. VACATION OF OFFICE OF DIRECTORS.......................................................................... 24
XXVI. CERTAIN BUSINESS COMBINATIONS............................................................................ 25
XXVII. BUSINESS COMBINATIONS WITH INTERESTED MEMBERS............................................................ 25
XXVIII. SEAL..................................................................................................... 29
XXIX. OFFICERS................................................................................................. 30
XXX. DIVIDENDS AND RESERVES................................................................................... 31
XXXI. CAPITALIZATION........................................................................................... 32
XXXII. AUDIT.................................................................................................... 32
XXXIII. NOTICES.................................................................................................. 32
XXXIV. LIMITATION OF LIABILITY AND INDEMNITY.................................................................... 33
XXXV. BOOKS AND RECORDS........................................................................................ 34
XXXVI. WINDING UP............................................................................................... 35
XXXVII. DEREGISTRATION........................................................................................... 35
XXXVIII. FISCAL YEAR.............................................................................................. 36
XXXIX. AMENDMENTS OF ARTICLES................................................................................... 36
</TABLE>
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I. INTERPRETATION
1.1 The Regulations or Articles contained or incorporated in Table "A"
Regulations For Management of a Company Limited by Shares in the First Schedule
to the Statute shall not apply to this Company, and the following Articles shall
be the Articles of Association of the Company. The following terms shall have
the following meanings wherever they appear herein, and such meanings shall be
equally applicable to both the singular and plural forms of the terms herein
defined.
"Articles" means these Articles of Association, as originally framed or as
from time to time altered by Special Resolution.
"Board of Directors" means the board of directors of the Company.
"Company" means Transocean Sedco Forex Inc., a Cayman Islands exempted
company limited by shares. Where agreement, consent or other action of the
Company is provided for herein, such action shall not require approval of the
Members, except as expressly required by the Statute or these Articles.
"Directors" means the directors of the Company as of the applicable date.
"dividend" includes bonus.
"holder," in relation to any shares, means the Member whose name is entered
in the Register as the holder of such shares.
"Member" has the meaning ascribed to it in Section 38 of the Statute.
"Memorandum" means the memorandum of association of the Company, as may be
amended from time to time.
"Month" means calendar month.
"Ordinary Resolution" means a resolution passed by a majority of such
Members as, being entitled to do so, vote in person or by proxy at any general
meeting of the Company at which the required quorum is present in person or by
proxy.
"Ordinary Shares" has the meaning ascribed to it in Article III.
"Paid-up" means fully paid, paid-up and/or credited as fully paid or
paid-up.
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"person" means any individual, corporation, partnership, unincorporated
association or other legal entity.
"Register" means the Register of Members of the Company as maintained in
accordance with Section 40 of the Statute.
"Registered Office" means the registered office of the Company maintained
in accordance with Section 50 and Section 51 of the Statute, and as may be
relocated from time to time.
"Secretary" means the secretary of the Company and includes an Assistant
Secretary and any person appointed to perform the duties of Secretary of the
Company.
"shares" means any Ordinary Shares or other shares issued in the capital of
the Company.
"shares generally entitled to vote" means any share which entitles the
holder to attend and vote at all general meetings of the Company and excludes
(a) any share where the right to vote at general meetings of the Company is
conditional on the Company being in default of an obligation with respect to a
right attaching to the class or series of share to which that share belongs
and/or (b) any share where the right to vote relates solely to such a class or
series of shares (other than the Ordinary Shares).
"Special Resolution" has the same meaning as in the Statute.
"Statute" means the Companies Law (1998 Revision) of the Cayman Islands, as
amended, and every statutory modification or re-enactment thereof for the time
being in force.
"written" and "in writing" includes all modes of representing or
reproducing words in visible form.
Words importing the singular number shall also include the plural number
and vice-versa.
Words importing the masculine gender shall also include the feminine
gender.
II. CERTIFICATES FOR SHARES
2.1 Unless otherwise provided by resolution of the Board of Directors,
shares shall be represented by certificates that shall be in such form as is
approved by the Board of Directors.
2.2 The Board of Directors shall have authority to make such rules and
regulations as it may deem expedient concerning the issue, transfer (in addition
to or in lieu of those set forth in Article VIII) and registration of shares,
including without
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limitation, such rules and regulations as may be deemed expedient concerning the
issue of certificates in lieu of certificates claimed to have been lost,
destroyed, stolen or mutilated.
III. ISSUE OF SHARES
3.1 The authorized share capital of the Company as of the date of adoption
of these Articles is US$8,000,000 divided into 300,000,000 Ordinary Shares of a
nominal or par value of US$0.01 per share, with the rights as set out in these
Articles and the Memorandum ("Ordinary Shares"), and 50,000,000 shares of a
nominal or par value of US$0.10 per share which may be designated and created as
shares of any other classes or series of shares with the respective rights and
restrictions determined upon the creation thereof by action of the Board of
Directors.
3.2 Subject to the provisions of these Articles, all unissued shares for
the time being in the capital of the Company shall be at the disposal of the
Board of Directors, and the Board of Directors may designate, re-designate,
allot, grant options over or otherwise dispose of them to such persons, on such
terms and conditions and at such times as they deem proper.
3.3 No holder of Ordinary Shares or any other shares (unless such right is
expressly conferred on the holders of such shares) shall, by reason of such
holding, have any preemptive or preferential right to subscribe to or purchase
any shares or any notes, debentures, bonds or other securities of the Company,
whether or not the issuance of any such shares, notes, debentures, bonds or
other securities would adversely affect the dividend, voting or any other rights
of such holder.
3.4 The Company may, insofar as may be permitted by law, pay a commission
to any person in consideration of such person or any other person subscribing or
agreeing to subscribe whether absolutely or conditionally for any shares. Such
commissions may be satisfied by the payment of cash or the lodgment of 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.
3.5 The Directors may issue fractions of a share of any class or series of
shares, and, if so issued, a fraction of a share (calculated to three decimal
points) shall be subject to and carry the corresponding fraction of 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 or series of shares. If more
than one fraction of a share of the same class or series is issued to or
acquired by the same member such fractions shall be accumulated. For the
avoidance of doubt, in these Articles the expression "share" shall include a
fraction of a share.
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3.6 Any shares which have been redeemed or otherwise repurchased by the
Company shall have the status of authorized but unissued shares and may be
subsequently issued in accordance with the Memorandum and these Articles.
3.7 The Board of Directors shall have the fullest powers permitted by law
to pay all or any monies in respect of the redemption or purchase of any shares
out of the Company's share capital and share premium account.
IV. ORDINARY SHARES
4.1 The Board of Directors may allot, issue or grant any option, right,
warrant or other security exercisable for, convertible into or exchangeable for,
or otherwise dispose of, any shares or securities of the Company at such times
and on such terms as it deems proper. Upon approval of the Board of Directors,
such number of Ordinary Shares, or other shares or securities of the Company, as
may be required for such purpose shall be reserved for issuance in connection
with any option, right, warrant or other security of the Company or any other
person that is exercisable for, convertible into, exchangeable for or otherwise
issuable in respect of such Ordinary Shares or other shares or securities of the
Company. Notwithstanding the generality of the foregoing, the Board of
Directors is expressly authorized and empowered to implement or effect at its
sole discretion the issuance of a preferred share purchase right to be attached
to each issued Ordinary Share with such terms and for such purposes, including
the influencing of takeovers, as may be described in a rights agreement between
the Company and a rights agent.
4.2 Subject to the provisions of applicable law and any rights granted to
any series or class of shares other than Ordinary Shares, the holders of
Ordinary Shares shall have and possess the exclusive right to notice of general
meetings of the Company and the exclusive power to vote on resolutions put to
general meetings of the Company.
V. OTHER CLASSES OR SERIES OF SHARES
5.1 The Board of Directors is authorized, without obtaining any vote or
consent of the holders of any class or series of shares unless expressly
provided by the terms of issue of a class or series, subject to any limitations
prescribed by law, to provide from time to time for the issuance of other
classes or series of shares and, in accordance with applicable procedures of the
Statute, to establish the characteristics of each class or series including,
without limitation, the following:
(a) the number of shares of that class or series, which may
subsequently be increased or decreased (but not below the number of shares of
that class or series then in issue) by resolution of the Board of Directors, and
the distinctive designation thereof;
(b) the voting powers, full or limited, if any, of the shares of that
class or series, including without limitation, the authority to confer multiple
votes per share, voting rights as to specified matters or issues such as
mergers, consolidations or sales of
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assets, or voting rights to be exercised either together with holders of
Ordinary Shares as a single class, or independently as a separate class;
(c) the rights in respect of dividends, if any, on the shares of that
class or series; the rate at which such dividends shall be payable and/or
cumulate, which rate may be determined on factors external to the Company and
which dividends may be payable in cash, shares of capital or other securities or
property of the Company; whether dividends shall be cumulative and, if so, from
which date or dates; the relative rights or priority, if any, of payment of
dividends on shares of that class or series; and any limitation, restrictions or
conditions on the payment of dividends;
(d) the relative amounts, and the relative rights or priority, if any,
of payment in respect of shares of that class or series, which the holder of the
shares of that class or series shall be entitled to receive upon any
liquidation, dissolution or winding up of the Company;
(e) any redemption, repurchase, retirement and sinking fund rights,
preferences and limitations of that class or series, the amount payable on
shares of that class or series in the event of such redemption, repurchase or
retirement, the terms and conditions of any sinking fund, the manner of creating
such fund or funds and whether any of the foregoing shall be cumulative or non-
cumulative;
(f) the terms, if any, upon which the shares of that class or series
shall be convertible into or exchangeable for shares of any other classes,
series, or other securities, whether or not issued by the Company;
(g) the restrictions, limitations and conditions, if any, upon
issuance of indebtedness of the Company so long as any shares of that class or
series are in issue; and
(h) any other preferences and relative, participating, optional or
other rights and limitations not inconsistent with applicable law.
VI. VARIATION OF RIGHTS OF SHARES
6.1 (a) If at any time the share capital of the Company is divided into
different classes or series of shares, the rights attached to any class or
series (unless otherwise provided by the terms of issue of the shares of that
class) may, whether or not the Company is being wound-up, be varied and amended
with the consent in writing of the holders of all of the issued shares of that
class or series, or with the sanction of a Special Resolution passed at a
separate general meeting of the holders of such class or series.
(b) The provisions of these Articles relating to general meetings of
the Company shall apply to every such separate general meeting of the holders of
one class or series of shares (unless otherwise expressly provided by the terms
of issue of the shares of that class or series).
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(c) Separate general meetings of the holders of a class or series of
shares or the seeking of a consent of the holders of a class or series of shares
may only be called at the direction of the Board of Directors (unless otherwise
expressly provided by the terms of issue of the shares of that class or series).
Nothing in this Article VI gives any Member or group of Members the right to
call a class or series meeting or demand a class or series vote or consent.
6.2 The rights conferred upon the holders of the shares of any class or
series issued with preferred or other rights shall not, unless otherwise
expressly provided by the terms of issue of the shares of that class or series,
be deemed to be varied by the creation or issue of further shares ranking in any
respect prior to or pari passu therewith. The rights of the holders of Ordinary
Shares shall not be deemed to be varied by the creation or issue of shares with
preferred or other rights, which may be effected by the Board of Directors as
provided in these Articles without any vote or consent of the holders of
Ordinary Shares.
VII. REDEMPTION AND REPURCHASE
7.1 The Ordinary Shares are not redeemable by the Company or the holder.
Subject as set out herein, the Company is authorized to purchase any issued
Ordinary Shares in such circumstances and on such terms as shall be agreed by
the Company and the holder thereof, subject always to the laws of the Cayman
Islands, and the Company may deduct from the price for such shares the aggregate
amount of any outstanding debts, liabilities and engagements to or with the
Company (whether presently payable or not) by the holder of such shares, either
alone or jointly with any other person, whether a Member or not. Without
limiting the foregoing, the Company may, from time to time, upon the agreement
of a Member, purchase all or part of the Ordinary Shares of any such Member,
whether or not the Company has made a similar offer to all or any of the other
Members.
VIII. TRANSFER OF SHARES
8.1 Transfers of shares shall be registered on the records maintained by
or on behalf of the Company for such purpose upon (i) surrender to the Company
or its transfer agent of a certificate or certificates representing the shares
requested to be transferred, the transfer provisions on the certificate or
certificates being duly completed or on a separate accompanying transfer in such
form as the Board of Directors approves, together with such evidence of the
payment of transfer taxes and compliance with other provisions of law as the
Company or its transfer agent may require, or (ii) if shares are not represented
by certificates, upon compliance with such transfer procedures as may be
approved by the Board of Directors or prescribed by applicable law.
8.2 Subject to the rules of any stock exchange on which the shares in
question may be listed and except as otherwise expressly provided by the terms
of issue of the shares of any class or series, the Board of Directors may, in
its absolute discretion and
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without assigning any reason therefore, decline to register any transfer of any
share. The registration of transfers may be suspended at such times and for such
periods as the Board of Directors may from time to time determine provided
always that such registration shall not be suspended for more than 30 days in
any year.
IX. NONRECOGNITION OF TRUSTS
9.1 The Company shall be entitled to treat the holder of record of any
share as the holder in fact thereof and accordingly shall not be bound to
recognize any equitable or other claim to or interest in such share on the part
of any other person, whether or not it shall have express or other notice
thereof, except as expressly provided by law. The Company shall not be required
to recognize any person as holding any share upon any trust, and the Company
shall not be bound by or be compelled in any way to recognize (even when having
notice thereof) any equitable, contingent, future or partial interest in any
share, any interest in any fractional part of a share (subject to Section 3.5),
or (except only as is otherwise provided by these Articles or the Statute) any
other rights in respect of any share except an absolute right to the entirety
thereof in the registered holder.
X. LIEN ON SHARES
10.1 The Company shall have a first and paramount lien and charge on all
shares (not being a fully paid share) registered in the name of a Member
(whether solely or jointly with others) for all debts, liabilities or
engagements to or with the Company (whether presently payable or not) by such
Member or his estate, either alone or jointly with any other person, whether a
Member or not, but the Board of Directors may at any time declare any share to
be wholly or in part exempt from the provisions of this Article X. The
registration of a transfer of any such share shall operate as a waiver of the
Company's lien (if any) thereon. The Company's lien (if any) on a share shall
extend to all dividends, redemptions or other monies payable in respect thereof.
10.2 The Company may sell, in such manner as the Board of Directors deems
fit, any shares on which the Company has a lien, except as set forth in this
Article X. Unless otherwise permitted in the instrument creating such lien, no
such sale shall be made unless a sum in respect of which the lien exists is
presently payable. Unless otherwise permitted in the instrument creating such
lien, no such sale shall be made 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 holder
or holders for the time being of the shares, or the person, of which the Company
has notice, entitled thereto by reason of his death or bankruptcy.
10.3 To give effect to any such sale, the Board of Directors may authorize
some person to transfer the shares sold to the purchaser thereof. The purchaser
shall be registered as the holder of the shares included 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.
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10.4 The proceeds of the sale of such shares 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, if any, shall (subject
to a like lien for sums not presently payable as existed upon the shares before
the sale) be paid to the person entitled to the shares at the date of the sale.
XI. CALL ON SHARES
11.1 (a) The Board of Directors may from time to time make calls upon the
Members in respect of any monies unpaid on their shares (whether on account of
the nominal value of the shares or by way of premium or otherwise) and not by
the conditions of allotment thereof made payable at fixed terms; and each Member
shall, subject to receiving at least 14 days' notice (or some shorter period of
notice as may have been authorized by the terms on issue of the shares)
specifying the time or times of payment, pay to the Company at the time or times
so specified the amount called on the shares. A call may be revoked or
postponed as the Board of Directors may determine. A call may be made payable
by installments.
(b) A call shall be deemed to have been made at the time when the
resolution of the Board of Directors authorizing such call was passed unless
otherwise provided by the Board of Directors.
(c) The joint holders of a share shall be jointly and severally liable
to pay all calls in respect thereof.
11.2 If a sum called in respect of a share is not paid before or on the
day appointed for payment thereof, the persons from whom the sum is due shall
pay interest on the sum from the day appointed for payment thereof to the time
of actual payment at such rate not exceeding ten percent (10%) per annum as the
Board of Directors may determine, but the Board of Directors shall be at liberty
to waive payment of such interest either wholly or in part.
11.3 Any sum which by the terms of a share becomes payable on allotment or
at any fixed date, whether on account of the nonfinal value of the share or by
way of premium or otherwise, shall for the purposes of these Articles be deemed
to be a call duly made, notified and payable on the date on which by the terms
of issue the same becomes payable, and in the case of nonpayment, all the
relevant provisions of these Articles as to payment of interest, forfeiture or
otherwise shall apply as if such sum had become payable by virtue of a call duly
made and notified.
11.4 The Board of Directors may, on the issue of shares, differentiate
between the holders as to the amount of calls or interest to be paid and the
times of payment.
11.5 (a) The Board of Directors may, if it thinks fit, receive from any
Member willing to advance the same, all or any part of the monies uncalled and
unpaid
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upon any shares held by him, and upon all or any of the monies so advanced may
(until the same would but for such advances, become payable) pay interest at
such rate as may be agreed upon between the Company and the Member paying such
sum in advance.
(b) No such sum paid in advance of calls shall entitle the Member
paying such sum to any portion of a dividend declared in respect of any period
prior to the date upon which such sum would, but for such payment, become
presently payable.
XII. FORFEITURE OF SHARES
12.1 (a) If a Member fails to pay any call or installment of a call or to
make any payment required by the terms of issue on the day appointed for payment
thereof, the Board of Directors may, at any time thereafter during such time as
any part of the call, installment or payment remains unpaid, give notice
requiring payment of so much of the call, installment or payment as is unpaid,
together with any interest which may have accrued and all expenses that have
been incurred by the Company by reason of such nonpayment. Such notice shall
name a day (not earlier than the expiration of 14 days from the date of giving
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 nonpayment at or before the time
appointed, the shares in respect of which such notice was given will be liable
to be forfeited.
(b) 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 the notice has been made, be
forfeited by a resolution of the Board of Directors to that effect. Such
forfeiture shall include all dividends declared in respect of the forfeited
share and not actually paid before the forfeiture.
(c) A forfeited share may be sold or otherwise disposed of on such
terms and in such manner as the Board of Directors deems fit, and at any time
before a sale or disposition the forfeiture may be canceled on such terms as the
Board of Directors thinks fit.
12.2 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 monies which, at the date of forfeiture, were payable by
him to the Company in respect of the shares together with interest thereon, but
his liability shall cease if and when the Company shall have received payment in
full of all monies whenever payable in respect of the shares.
12.3 A certificate in writing under the hand of the President or any Vice
President and the Secretary of the Company that a share in the Company has been
duly forfeited on a date stated in the declaration shall be conclusive evidence
of the fact therein stated as against all persons claiming to be entitled to the
share. The Company may receive the consideration given for the share on any
sale or disposition thereof and
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may execute a transfer of the share in favor of the person to whom the share is
sold or disposed of, and that person 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 that person's 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.
12.4 The provisions of these Articles as to forfeiture shall apply in the
case of nonpayment of any sum which, by the terms of issue of a share, becomes
payable at a fixed time, whether on account of the nominal value of the share or
by way of premium as if the same had been payable by virtue of a call duly made
and notified.
XIII. TRANSMISSION OF SHARES ON DEATH OR BANKRUPTCY
13.1 In case of the death of a Member who is a natural person, the
survivor or survivors, where the deceased was a joint holder, and the legal
personal representatives of the deceased, where he was a sole holder, shall be
the only persons recognized by the Company as having any title to his interest
in the shares, but nothing herein contained shall release the estate of any such
deceased holder from any liability in respect of any shares which had been held
by him solely or jointly with other persons.
13.2 (a) Any person becoming entitled to a share in consequence of the
death or bankruptcy of a Member (or in any other way than by transfer) may, upon
such evidence being produced as may from time to time be required by the Board
of Directors and subject as hereinafter provided, elect either to be registered
himself as holder of the share or to make such transfer of the share to such
other person nominated by him as the deceased or bankrupt person could have made
and to have such person registered as the transferee thereof, but the Board of
Directors shall, in either case, have the same right to decline or suspend
registration as they would have had in the case of a transfer of the share by
that Member before his death or bankruptcy, as the case may be.
(b) If the person so becoming entitled shall elect to be registered
himself as holder he shall deliver or send to the Company a notice in writing
signed by him stating that he so elects.
13.3 A person becoming entitled to a share by reason of the death or
bankruptcy of the holder (or in any other case than by transfer) shall be
entitled to the same dividends and other advantages to which he would be
entitled if he were the registered holder of the share, except that he shall
not, before being registered as a Member in respect of the share, be entitled in
respect of it to exercise any right conferred by membership in relation to
meetings of the Company; provided, however, that the Board of Directors may at
any time give notice requiring any such person to elect either to be registered
himself or to transfer the share and if the notice is not complied with within
90 days the Board of Directors may thereafter withhold payment of all dividends,
bonuses or other monies payable in respect of the share until the requirements
of the notice have been complied with.
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XIV. AMENDMENT OF MEMORANDUM OF ASSOCIATION, CHANGE OF
LOCATION OF REGISTERED OFFICE AND ALTERATION OF CAPITAL
14.1 (a) Subject to and insofar as permitted by the provisions of the
Statute, the Company may from time to time by Special Resolution alter or amend
the Memorandum and may, without restricting the generality of the foregoing:
(i) increase the share capital by such sum to be divided into shares
of such amount or without nominal or par value as the resolution shall
prescribe;
(ii) consolidate all or any of its share capital into shares of larger
amount than its existing shares;
(iii) by subdivision of all of its existing shares or any class or
series of shares, divide the whole or any part of its share capital into shares
of smaller amount than is fixed by the Memorandum; or
(iv) cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any person or reserved
for issue by the Board of Directors.
(b) All new shares created hereunder shall be subject to the same
provisions with reference to the payment of calls, liens, transfer,
transmission, forfeiture and otherwise as the shares in the original share
capital.
(c) Subject to the provisions of the Statute, the Company may by
Special Resolution reduce its share capital or any capital redemption reserve
fund.
14.2 Subject to the provisions of the Statute, the Company may by Special
Resolution change its name.
14.3 Subject to the provisions of the Statute, the Board of Directors may
change the location of the Company's registered office.
XV. CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
15.1 For the purpose of determining Members entitled to notice of or to
vote at any general meeting of the Company or any adjournment thereof, or
Members entitled to receive payment of any dividend or other distribution or
allotment of any rights of the Members entitled to exercise any rights in
respect of any charge, change, conversion or exchange of shares or for the
purpose of any other lawful action, the Board of Directors may provide that the
Register shall be closed for transfers for a stated period.
15.2 In lieu of or apart from closing the Register, the Board of Directors
may fix in advance a date as the record date for any such determination of
Members entitled to notice of or to vote at a general meeting of the Company;
provided, however, that such
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record date shall not be more than 60 nor less than 10 days prior to such
meeting. For the purpose of determining the Members entitled to receive payment
of any dividend or other distribution or allotment of any rights of the Members
entitled to exercise any rights in respect of any charge, change, conversion or
exchange of shares, or for the purpose of any other lawful action, the Board of
Directors may, at or within 60 days prior to the date of declaration of such
dividend or other action, fix a subsequent date no later than the date of
declaration as the record date for such determination.
15.3 If the Register is not so closed and no record date is fixed for the
determination of Members entitled to notice of or to vote at a general meeting
of the Company, the date preceding the day on which notice of the meeting is
given or if notice is waived, at the close of business on the day preceding the
day on which the meeting is held shall be the record date for such determination
of Members. When a determination for Members entitled to vote at any general
meeting of the Company has been made as provided in this Article XV, such
determination shall apply to any adjournment thereof; provided, however, that
the Board of Directors may fix a new record date for the adjourned meeting.
15.4 If the Register is not so closed and no record date is fixed for the
determination of Members entitled to receive payment of any dividend or other
distribution or allotment of any rights of the Members entitled to exercise any
rights in respect of any charge, change, conversion or exchange of shares, or
for the purpose of any other lawful action (other than as specified in Section
15.3), the record date for determining the Members for any such purpose shall be
the close of business on the day in which the Board of Directors adopts the
resolution relating thereto.
XVI. VOTING
16.1 Subject to the rights of holders of any class or series of shares:
(a) at each election for Directors at a general meeting of the Company
the Directors shall be elected by a plurality of the votes cast in person or by
proxy at that general meeting and each Member holding Ordinary Shares shall have
the right to vote, in person or by proxy, the number of Ordinary Shares
registered in his name in the Register for as many persons as there are
Directors to be elected and for whose election he has a right to vote.
Cumulative voting, for the election of Directors, is expressly prohibited.
Election of Directors need not be by ballot; and
(b) on all matters coming before the Members at a general meeting of
the Company, other than the election of Directors, each Member holding Ordinary
Shares shall have the right to vote, in person or by proxy, one vote for each
issued Ordinary Share registered in his name in the Register.
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XVII. GENERAL MEETINGS
17.1 (a) The Company shall in each year of its existence hold a general
meeting of the Company as its annual general meeting. The annual general
meeting shall be held on such date and at such time and place as the Board of
Directors shall appoint. At each annual general meeting, elections shall be
held for Directors whose terms have expired and such other business may be
transacted as may properly be brought before such meeting.
(b) At each annual general meeting of the Company, the Directors to be
elected at that meeting shall be elected by single resolution for the applicable
term or until their respective successors have been elected.
17.2 (a) Except as otherwise required by law, and subject to the rights
of any class or series of shares having a preference over the Ordinary Shares as
to dividends or to elect Directors in specified circumstances, extraordinary
general meetings of the Company may be called only by resolution of the Board of
Directors, approved by at least a majority of the entire Board of Directors.
(b) Any action required or permitted to be taken by the Members
whether pursuant to these Articles or by law, must be taken at a duly called
annual or extraordinary general meeting of the Company unless the written
consent or approval of all holders of issued shares generally entitled to vote
has been obtained with respect to such action.
17.3 No Member shall have any right to requisition a general meeting of
the Company.
XVIII. NOTICE OF GENERAL MEETINGS
18.1 Written notice of each general meeting of the Company stating the
place, date and time of the meeting shall be given not less than 10 (or such
greater number of days as may be required by the Statute) nor more than 60 days
before the date of the meeting to each Member entitled to vote at such meeting.
The notice of each general meeting of the Company shall state the purpose or
purposes for which the meeting is called. The business at an annual general
meeting of the Company shall be limited in the manner set out in Section
19.2(c). No business shall be transacted at any extraordinary general meeting of
the Company except as stated in the notice.
18.2 The accidental omission to give notice of a general meeting of the
Company to, or the nonreceipt of notice of such a meeting by, any person
entitled to receive notice shall not invalidate the proceedings of that meeting.
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XIX. PROCEEDINGS AT GENERAL MEETINGS
19.1 No business shall be transacted at any general meeting of the Company
unless a quorum of Members is present at the time when the meeting proceeds to
business. At a general meeting of the Company to:
(a) consider or adopt a Special Resolution to amend, vary, suspend the
operation of or disapply Sections 17, 19, 21.1, 26 or 27 (other than a Special
Resolution referred to in Section 19.1(b)), one or more Members present in
person or by proxy holding at least 95 percent of the issued shares entitled to
vote at such meeting shall be a quorum unless:
(i) a majority of the Board of Directors has at, or at any time prior
to, the meeting recommended to the Members entitled to vote at such meeting, to
vote in favor of such Special Resolution; and
(ii) in the case of a Special Resolution to amend, vary, suspend the
operation of or disapply Section 27 (other than a Special Resolution referred to
in Section 19.1(b)), such Board of Directors' recommendation is made at a time
where a majority of the Board of Directors then in office (but not less than
one) were Directors prior to any person becoming an Interested Member (as
defined in Section 27) during the previous three years or were recommended for
election or elected to succeed such Directors by a majority of such Directors,
in which case one or more Members present in person or by proxy holding at least
a majority of the issued shares entitled to vote at such meeting shall be a
quorum;
(b) consider or adopt a Special Resolution to delete Section 27 on the
conditions that (i) such resolution shall not be effective until 12 months after
the passing of such resolution and (ii) the restriction in Section 27 shall
otherwise continue to apply to any Business Combination between the Company and
any person who became an Interested Member on or prior to the passing of such
resolution, one or more Members present in person or by proxy holding at least a
majority of the issued shares entitled to vote at such meeting shall be a
quorum; and
(c) consider or adopt any other resolution or to take any other
action, one or more Members present in person or by proxy holding at least a
majority of the issued shares generally entitled to vote at such meeting shall
be a quorum.
The Members present at a duly constituted general meeting of the
Company may continue to transact business until adjournment, despite the
withdrawal of such Members as leave less than a quorum.
19.2 (a) Subject to the rights of holders of any class of shares to the
contrary, nominations for election of Directors at any general meeting of the
Company may be made either by the Board of Directors or by any Member entitled
to vote for the election of Directors who gives advance notice as hereafter
provided. Any such Member
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may nominate persons for election as Directors only if written notice of such
Member's intent to make such nomination is transmitted to, and received by, the
Secretary at the principal executive offices of the Company not later than (i)
in the case of an annual general meeting of the Company, not less than 90 days
prior to the anniversary of the date of the immediately preceding annual general
meeting that was specified in the initial formal notice of such meeting (but if
the date of the forthcoming annual general meeting is more than 30 days before
or after such anniversary date, such written notice must instead be received by
the Secretary by the close of business on the 10th day following the date on
which the Company first makes public disclosure of the meeting date) and (ii) in
the case of an extraordinary general meeting of the Company (provided that the
Board of Directors has determined that Directors shall be elected at such
meeting), the close of business on the 10th day following the date on which the
Company first makes public disclosure of the meeting date. Each notice given by
such Member shall set forth: (i) the name and address of the Member who intends
to make the nomination and of the person or persons to be nominated; (ii) a
representation that the Member is a registered holder of shares entitled to vote
at such meeting (or if the record date for such meeting is subsequent to the
date required for such Member notice, a representation that the Member is such a
registered holder at the time of such notice and intends to be a registered
holder on the date for such meeting), and setting forth the class and number of
shares so held (including shares held beneficially); (iii) a representation that
such Member intends to appear in person or by proxy as a registered holder of
shares at the meeting to nominate the person or persons specified in the notice;
(iv) a description of all arrangements or understandings between such Member and
any other person or persons (identifying such person or persons) pursuant to
which the nomination or nominations are to be made by the Member; (v) such other
information regarding each nominee proposed by such Member as would be required
to be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission of the United States of America; and (vi) the
consent of each nominee to serve as a director of the Company if so elected.
(b) If the facts show that a nomination was not made in accordance
with the provisions of Section 19.2(a), the presiding officer of the general
meeting shall so determine and declare to the meeting, whereupon the defective
nomination shall be disregarded. Public disclosure of the date of a forthcoming
general meeting may be made by the Company for purpose of this Section 19.2 not
only by the giving of the formal notice of the meeting, but also (i) by notice
to a national securities exchange (as such term is used in the Securities
Exchange Act of 1934, as amended of the United States of America (the "Exchange
Act") or to the National Association of Securities Dealers, Inc. (if the
Ordinary Shares are then listed on such exchange or quoted on NASDAQ), (ii) by
filing a report under Section 13 or 15(d) of the Exchange Act (if the Company is
then subject thereto) or (iii) by a mailing to Members or by issuance of a
general press release.
(c) No business shall be transacted at an annual general meeting of
the Company other than such business as shall be (i) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (ii) otherwise properly brought before the meeting by or at the
direction of the Board of Directors or (iii) brought before the meeting by a
Member present and entitled to vote at
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such meeting in accordance with the following procedure. For business to be
brought before an annual general meeting of the Company by a Member, the Member
must have given timely notice in writing to the Secretary. To be timely, a
Member's notice must be transmitted to, and received by, the Secretary at the
principal executive offices of the Company not less than 90 days prior to the
anniversary of the date of the immediately preceding annual general meeting that
was specified in the initial formal notice of such meeting (but if the date of
the forthcoming annual general meeting is more than 30 days before or after such
anniversary date, such written notice must instead be received by the Secretary
by the close of business on the 10th day following the date on which the Company
first makes public disclosure of the meeting date). Each such notice given by
such Member must set forth: (1) a brief description of the business desired to
be brought before the meeting and the reasons for conducting such business at
the meeting; (2) the name and address of the Member who intends to propose such
business; (3) a representation that the Member is a registered holder of shares
entitled to vote at such meeting (or if the record date for such meeting is
subsequent to the date required for such Member notice, a representation that
the Member is a registered holder at the time of such notice and intends to be a
registered holder on the date of such meeting) and intends to appear in person
or by proxy at such meeting to propose such business; and (4) any material
interest of the Member in such business. The presiding officer of the meeting
may refuse to transact any business at any meeting made without compliance with
the foregoing procedure.
(d) Notwithstanding the provisions of Section 19.2, a Member also
shall comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in Section
19.2. Nothing in Section 19.2 shall be deemed to affect any rights of Members
to request inclusion of proposals in the Company's proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
19.3 The Chairman of the Board of Directors appointed by the Board of
Directors prior to the relevant general meeting of the Company or, in his
absence, a person designated by the Chairman of the Board of Directors, or if no
person is so designated, a person designated by the Board of Directors shall
preside at any meeting of the Members and determine the order of business and
all other matters relating to the conduct of the meeting.
19.4 The presiding officer of any meeting of the Members shall have the
power to prescribe such rules, regulations and procedures and to do all such
things as in his judgment may be necessary or desirable for the proper conduct
of the meeting, including, without limitation, the establishment of procedures
for the maintenance of order and safety, the right of Directors, Members and
others to speak, limitations on the time allotted to questions or comments,
restrictions on entry to the meeting after the time scheduled for the
commencement thereof and the opening and closing of the voting polls.
19.5 The presiding officer may, with the consent of a majority of the
Members present and entitled to vote at any general meeting duly constituted
hereunder, adjourn
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the meeting from time to time and from place to place, but no
business shall be transacted at any adjourned meeting other than the business
left unfinished at the meeting from which the adjournment took place. When a
general meeting is adjourned for 30 days or more, notice of the adjourned
meeting shall be given as in the case of an original meeting; save as aforesaid
it shall not be necessary to give any notice of an adjournment or of the
business to be transacted at an adjourned general meeting.
19.6 In the case of joint registered holders, the vote of the senior
holder who tenders a vote, whether in person or by proxy, shall be accepted to
the exclusion of the votes of the other joint holders, and for this purpose
seniority shall be determined by the order in which the names stand in the
Register.
19.7 No Member shall be entitled to vote at any general meeting of the
Company unless (a) he is registered as a Member on the record date for such
meeting or holds a valid proxy of such a Member or unless (b) all calls or other
sums presently payable in respect of the shares to be voted have been paid.
19.8 Votes may be given either personally or by proxy.
XX. PROXIES
20.1 The instrument appointing a proxy shall be in writing and shall be
executed under the hand of the appointor or his attorney duly authorized in
writing, or, if the appointor is a corporation or other legal entity, under the
hand of an officer, attorney or where applicable, trustee duly authorized in
that behalf. A proxy need not be a Member. Each Member entitled to vote at a
general meeting of the Company may authorize another person or persons to act
for him by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy specifically provides for a longer period.
If an instrument of proxy designates two or more persons to act as proxies,
their acts with respect to voting shall have the following effect: (a) if only
one proxy acts, his acts bind all; (b) if more than one proxy acts, the act of
the majority binds all; and (c) if more than one acts and a majority do not
agree on a particular issue, each proxy shall be entitled to vote in respect of
the same portion of the shares as such proxy is of the proxies representing such
shares.
20.2 The instrument appointing a proxy shall be deposited at the principal
executive offices of the Company or at such other place as is specified for that
purpose in the notice convening the meeting no later than the time for holding
the meeting, or adjourned meeting; provided that the presiding officer of the
meeting may at his discretion direct that an instrument of proxy shall be deemed
to have been duly deposited upon receipt of facsimile transmission of the signed
proxy or upon receipt of telex or cable confirmation from the appointor that the
instrument of proxy duly signed is in the course of transmission to the Company.
20.3 The instrument appointing a proxy may be in any usual or common form
and may be expressed to be for a particular meeting or any adjournment thereof.
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20.4 A vote given in accordance with the term of an instrument of proxy
shall be valid notwithstanding the previous death or insanity of the principal
or revocation of the proxy or of the authority under which the proxy was
executed, or the transfer of the share in respect of which the proxy is given
provided that no notice in writing of such death, insanity, revocation or
transfer as aforesaid shall have been received by the Company at its principal
executive offices before the commencement of the general meeting, or adjourned
meeting, at which it is sought to use the proxy.
20.5 Any corporation or other legal entity, which is a Member, may in
accordance with its articles of association or other governing documents or in
the absence of such provision by resolution of its board of directors or other
governing body authorize such person as it thinks fit to act as its
representative at any general meeting of the Company, and the person so
authorized shall be entitled to exercise the same powers on behalf of the
corporation or other legal entity which he represents as the corporation or
entity could exercise if it were an individual Member.
XXI. DIRECTORS
21.1 (a) There shall be a Board of Directors the members of which shall
be elected by the Members in accordance with Section 16.1 or appointed by the
Board of Directors in accordance with this Article XXI consisting of not less
than two nor more than 12 persons. The Board of Directors shall have the
exclusive power and right to set the exact number of Directors within that range
from time to time by resolution adopted by the vote of a majority of the whole
Board of Directors.
(b) Except as set out in Section 21(f), the Directors shall be divided
into three classes, designated by Class I, Class II and Class III. At the 2000
annual general meeting of the Company, Class I Directors shall be elected for a
term expiring at the 2003 annual general meeting of the Company. At the 2001
annual general meeting of the Company, Class II Directors shall be elected for a
term expiring at the 2004 annual general meeting of the Company. At the 2002
annual general meeting of the Company, Class III Directors shall be elected for
a term expiring at the 2005 annual general meeting of the Company. At each
annual general meeting of the Company, each class of Directors whose term shall
then expire shall be elected to hold office for a three-year term and until the
election of their respective successors in office or their earlier death,
resignation or removal.
(c) If the number of Directors is decreased by resolution of the Board
of Directors pursuant to this Section 21.1, in no case shall that decrease or
shorten the term of any incumbent Director.
(d) Any newly created directorship resulting from an increase in the
number of Directors and any other vacancy on the Board of Directors, however
caused, may only be filled by a majority of the Directors then in office,
although less than a quorum, or by a sole remaining Director. Any Director
elected by the Board of Directors
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to fill a vacancy shall hold office until the annual general meeting of the
Company for the year in which the term of the Director vacating office expires
and until his successor shall have been elected. Any newly created directorship
resulting from an increase in the number of Directors may be created in any
Class of Directors that the Board of Directors may determine, and any Director
elected to fill the newly created vacancy shall hold office until the term of
office of such Class expires.
(e) One or more or all of the Directors may be removed only for
"cause" by the affirmative vote of the holders of at least a majority of the
issued shares generally entitled to vote, voting together as a single class, at
a general meeting of the Company for which proper notice of the proposed removal
has been given. As used in the preceding sentence, "cause" shall be limited to
(i) action by the Director involving willful malfeasance, which conduct has a
material adverse effect on the Company, or (ii) conviction of the Director of a
felony. The Board of Directors shall not have any power to remove any Director.
(f) Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of shares in issue has the right, voting separately by
class or series, to elect Directors at an annual general meeting or
extraordinary general meeting of the Company, the election, term of office,
filling of vacancies and other features of such directorships shall be governed
by the provisions of these Articles. Directors so elected shall not be divided
into classes and shall be elected by such holders annually unless expressly
provided otherwise by those provisions or resolutions. The aforesaid Directors
and the Directors appointed under Section 21.1 shall together constitute the
Board of Directors from time to time.
21.2 Each Director shall be entitled to receive as compensation for such
Director's services as a Director or committee member or for attendance at
meetings of the Board of Directors or committees, or both, such amounts (if any)
as shall be fixed from time to time by the Board of Directors. Each Director
shall be entitled to reimbursement for reasonable traveling expenses incurred by
such Director in attending any such meeting.
21.3 A Director may hold any other office (other than as an outside
auditor of the Company) or place of profit under the Company in conjunction with
his office of Director for such period and on such terms as to remuneration and
otherwise as the Board of Directors may determine.
21.4 A Director may act by himself or for his firm in a professional
capacity for the Company (other than as an outside auditor of the Company), and
he or his firm shall be entitled to remuneration for professional services as if
he were not a Director; provided, however, that he has disclosed his interest in
the transaction at the first meeting held to consider the transaction or as soon
thereafter as he becomes interested in the transaction.
21.5 No membership qualifications for Directors shall be required.
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21.6 A Director may be or become a director or other officer of or
otherwise interested in any company promoted by the Company or in which the
Company may be interested as shareholder, member or otherwise, and no such
Director shall be accountable to the Company for any remuneration or other
benefits received by him as a director or officer of, or from his interest in,
such other company.
21.7 No person shall be disqualified from the office of Director or
prevented by such office from contracting with the Company, either as vendor,
purchaser or otherwise, nor shall any such contract or any contract or
transaction entered into by or on behalf of the Company in which any Director
shall be in any way interested or be liable to be avoided, nor shall any
Director so contracting or being so interested be liable to account to the
Company for any profit realized by any such contract or transaction by reason of
such Director holding office or of the fiduciary relation thereby established;
provided, however, that he has disclosed his interest in the transaction at the
first meeting held to consider the transaction or as soon thereafter as he
becomes interested in the transaction. A Director shall be at liberty to vote
in respect of any contract or transaction in which he is so interested as
aforesaid; provided, however, that the nature of the interest of any Director in
any such contract or transaction shall be disclosed by him at or prior to its
consideration and any vote thereon.
21.8 A general notice that a Director is a member of any specified firm or
company and is to be regarded as interested in any transaction with such firm or
company shall be sufficient disclosure under Section 21.7 and after such general
notice it shall not be necessary to give special notice relating to any
particular transaction.
21.9 The Directors may exercise all the powers of the Company to provide
pensions or other retirement or superannuation benefits and to provide death or
disability benefits or other allowances or gratuities (by insurance or
otherwise) for a person who is or has at any time been a Director of (a) the
Company, (b) a company which is or was an affiliate of the Company, or (c) a
predecessor in business of the Company or of an affiliate of the Company (or, in
each case, for any member of his family, including a spouse or former spouse, or
a person who is or was dependent on him). For this purpose, the Directors may
establish, maintain, subscribe and contribute to any scheme, plan, trust or fund
and pay premiums thereon. The Directors may arrange for this to be done by the
Company alone or in conjunction with another person.
21.10 A Director or former Director is entitled to receive and retain for
his own benefit a pension or other benefit provided under Section 21.9 and is
not obliged to account for it to the Company.
21.11 A Director may appoint any person to act as his proxy only in
respect of the annual meeting of the Board of Directors required to be held in
the Cayman Islands in each year pursuant to the Statute. Any proxy appointed
for the purposes of any such meeting will have authority only to vote in respect
of the approval of the Company's annual return to the Cayman Islands Registrar
of Companies. Such appointment must be
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made in writing under the hand of the appointor and may at any time be revoked
in like manner, and notice of every such appointment or revocation in like
manner, and the appointee need not be a Director or Member, but he must furnish
the Company with his address.
XXII. POWERS AND DUTIES OF DIRECTORS
22.1 The business and affairs of the Company shall be managed by the Board
of Directors who may exercise all such powers of the Company and do all such
lawful acts and things as are not from time to time by the Statute or by these
Articles required to be exercised or done by the Company in general meeting.
22.2 The Board of Directors may from time to time and at any time by
powers of attorney appoint any company, firm, person or body of persons, whether
nominated directly or indirectly by the Board of Directors, to be the attorney
or attorneys of the Company for such purpose and with such powers, authorities
and discretions (not exceeding those vested in or exercisable by the Board of
Directors under these Articles) and for such period and subject to such
conditions as it may think fit, and any such powers of attorney may contain such
provisions for the protection and convenience of persons dealing with any such
attorneys as the Board of Directors may deem fit and may also authorize any such
attorney to delegate all or any of the powers, authorities and discretions
vested in him.
22.3 All checks, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for monies paid to the Company shall be
signed, drawn, accepted, endorsed or otherwise executed as the case may be by
such officer or officers or such other person or persons as the Board of
Directors shall from time to time designate.
22.4 The Board of Directors shall cause minutes to be made for the purpose
of recording the proceedings at all meetings of the Company and the Directors
and of committees of the Board of Directors.
22.5 The Board of Directors may exercise all the powers of the Company to
borrow money and to mortgage or charge its undertaking, property and uncalled
capital or any part thereof and to issue debentures, debenture stock and other
securities whether outright or as security for any debt, liability or obligation
of the Company or of any third party.
22.6 The Board of Directors may authorize any officer, officers, agent or
agents to enter into any contract or agreement of any nature whatsoever,
including, without limitation, any contract, deed, bond, mortgage, guaranty,
deed of trust, security agreement, pledge agreement, act of pledge, collateral
mortgage, collateral chattel mortgage or any other document or instrument of any
nature whatsoever, and to execute and deliver any such contract, agreement,
document or other instrument of any nature
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whatsoever for and in the name of and on behalf of the Company, and such
authority may be general or confined to specific instances.
22.7 If, as the result of consolidation and division or subdivision of
shares, Members become entitled to fractions of a share, the Board of Directors
may on behalf of the Members deal with the fractions as it thinks fit. In
particular, the Board of Directors may:
(a) sell fractions of a share to a person (including, subject to the
Statute, to the Company) for the best price reasonably obtainable and distribute
the net proceeds of sale in due proportion amongst the persons entitled (except
that if the amount due to a person is less than US$10, or such other sum as the
Board of Directors may decide, the sum may be retained for the benefit of the
Company) and to give effect to such a sale the Board of Directors may authorize
a person to transfer the shares to the purchaser or his nominee and may cause
the name of the purchaser or his nominee to be entered in the register as the
holder of the shares. The purchaser is not bound to see to the application of
the purchase money and the title of the transferee to the shares is not affected
by an irregularity or invalidity in the proceedings connected with the sale; or
(b) subject to these Articles, allot or issue to a member credited as
fully paid by way of capitalization the minimum number of shares required to
round up his holding of shares to a number which, following consolidation and
division or subdivision, leaves a whole number of shares (such allotment or
issue being deemed to have been effected immediately before consolidation or
subdivision, as the case may be) and if shares are so allotted or issued the
amount required to pay-up those shares may be capitalized as the Board of
Directors thinks fit out of amounts standing to the credit of reserves
(including a share premium account, capital redemption reserve and profit and
loss account), whether or not available for distribution, and applied in paying-
up in full the appropriate number of shares. A resolution of the Board of
Directors capitalizing part of the reserves has the same effect as if the
capitalization had been declared by Ordinary Resolution.
XXIII. COMMITTEES
23.1 The Board of Directors may, by resolution passed by a majority of the
whole Board of Directors, designate one or more committees, each committee to
consist of one or more of the Directors, as designated by the Board of
Directors. The Board of Directors may designate one or more alternate Directors
as members of any committee, who may replace any absent member at any meeting of
the committee. In the absence of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent member. At all
meetings of any committee, a majority of its members (or the member, if only
one) shall constitute a quorum for the transaction of business, and the act of a
majority of the members present shall be the act of any such committee, unless
otherwise specifically provided by the Statute, the Memorandum, these Articles
or
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the resolution establishing such committee. The Board of Directors shall have
the power at any time to change the number and members of any such committee, to
fill vacancies and to discharge any such committee.
23.2 Any such committee, to the extent provided in the resolution of the
Board of Directors but subject to any limitations of the Statute, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Company and may authorize the seal
of the Company to be affixed to all papers that may require it. The provisions
herein with respect to notice of meetings of the Board of Directors shall apply
also to meetings of committees, unless different provisions shall be prescribed
by the Board of Directors. Each committee shall serve at the pleasure of the
Board of Directors. It shall keep minutes of its meetings and report the same
to the Board of Directors when required and shall observe such procedures as are
prescribed by the Board of Directors.
23.3 The committees of the Board of Directors may include the Audit
Committee, the Executive Compensation Committee, the Finance/Benefits Committee
and the Corporate Governance Committee and any other committees designated by
the Board of Directors.
XXIV. PROCEEDINGS OF DIRECTORS
24.1 Except as otherwise provided by these Articles, the Board of
Directors shall meet together for the dispatch of business, convening,
adjourning and otherwise regulating its meetings as it thinks fit. Questions
arising at any meeting shall be decided by a majority of the Directors present
at a meeting at which there is a quorum.
24.2 Regularly scheduled meetings of the Board of Directors may be held at
such time and at such place as shall from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman of the Board of Directors, the Chief Executive Officer, the
President or a majority of the Directors.
24.3 No notice need be given of any regular meeting of the Board of
Directors or of any adjourned meeting of the Board of Directors. No notice need
be given to any Director who signs a written waiver thereof or who attends the
meeting without protesting the lack of notice. Notices need not state the
purpose of the meeting. Attendance of a Director at any meeting shall
constitute a waiver of notice of such meeting, except when a Director attends
and makes it known that he is attending for the express purpose of objecting to
the transaction of any business on the grounds that the meeting is not lawfully
convened, and such purpose is duly recorded in the minutes of such meeting.
24.4 Notice of each special meeting of the Board of Directors shall be
given to each Director either by first class United States mail at least three
days before the meeting, by "overnight" or other express delivery service at
least two days before the
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meeting, or by telegram, telex, cable, telecopy, facsimile, personal written
delivery or telephone at least one day before the meeting. Any notice given by
telephone shall be immediately confirmed by telegram, telex, cable, telecopy or
facsimile. Notices are deemed to have been given: by mail, when deposited in the
United States mail with postage prepaid; by "overnight" or other express
delivery service, the day after sending; by telegram, telex, or cable, at the
time of sending; by telecopy or facsimile, upon receipt of a transmittal
confirmation; and by personal delivery or telephone, at the time of delivery.
Written notices shall be sent to a director at the address designated by such
Director for that purpose or, if none has been so designated, at such director's
last known residence or business address.
24.5 The quorum necessary for the transaction of the business of the Board
of Directors shall be a majority of the whole Board of Directors.
24.6 All acts done at any meeting of the Board of Directors or of a
committee of the Board of Directors shall, notwithstanding that it be afterwards
discovered that there was some defect in the appointment of any Director be as
valid as if every such person had been duly appointed and qualified to be a
Director.
24.7 Any one or more members of the Board of Directors or any committee
thereof may participate in a meeting of such Board of Directors or committee by
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
24.8 A resolution in writing (in one or more counterparts) signed by all
the Directors or all the members of a committee of Directors shall be as valid
and effectual as if it had been passed at a meeting of the Board of Directors or
committee, as the case may be, duly convened and held.
XXV. VACATION OF OFFICE OF DIRECTOR
25.1 The office of a Director shall be vacated:
(a) if he gives notice in writing to the Board of Directors or
Secretary that he resigns the office of Director;
(b) if he dies;
(c) if he is found to be or becomes of unsound mind; or
(d) if removed pursuant to Section 21.1.
25.2 In the case of a resignation, the resignation shall be effective as
of the date specified in the notice or if not so specified, upon receipt
thereof. Unless otherwise specified in the notice, acceptance shall not be
required to make it effective.
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25.3 A resolution of the Board of Directors declaring a Director to have
vacated office under the terms of Section 25.1 is conclusive evidence as to the
fact and grounds of vacation stated in the resolution.
XXVI. CERTAIN BUSINESS COMBINATIONS
26.1 In addition to any approval by Members required pursuant to the terms
of any series or class of shares other than Ordinary Shares, the approval of the
holders of at least a majority of the issued shares generally entitled to vote
at a meeting called for such purpose, following approval by the Board of
Directors shall be required in order for the Company "to sell, lease or exchange
all or substantially all of its property or assets" as that phrase is
interpreted for the purposes of section 271 of the Delaware General Corporation
Law, as amended or re-enacted from time to time, of the United States of
America, provided that the foregoing approval by Members shall not apply to any
such transaction of the Company with any entity which the Company, "directly or
indirectly controls" as that phrase is defined in Rule 405 under the Securities
Act of 1933, as amended or re-enacted from time to time, of the United States of
America.
XXVII. BUSINESS COMBINATIONS WITH INTERESTED MEMBERS
27.1 The Company shall not engage in any Business Combination with any
Interested Member for a period of three years following the time that such
Member became an Interested Member, unless, at or subsequent to such time, the
Business Combination is approved by the Board of Directors and authorized at a
general meeting of the Company by the affirmative vote of at least 66 2/3% of
the issued shares generally entitled to vote which are not Owned by the
Interested Member; provided, however, that the restrictions contained in this
Section 27.1 shall not apply if:
(a) prior to such time that such Member became an Interested Member,
the Board of Directors approved either the Business Combination or the
transaction which resulted in the Member becoming an Interested Member;
(b) upon consummation of the transaction which resulted in the Member
becoming an Interested Member, the Interested Member Owned at least 85% of the
issued shares generally entitled to vote at the time the transaction commenced,
excluding for purposes of determining the number of shares then in issue, those
shares Owned (i) by Persons who are both Directors and officers of the Company
and (ii) employee share plans in which employee participants do not have the
right to determine confidentially whether shares held subject to the plan will
be tendered in a tender or exchange offer;
(c) the Company does not have a class of voting shares that is (i)
listed on a national securities exchange (as such term is defined in the
Exchange Act), (ii) authorized for quotation on the NASDAQ Stock Market (or any
successor to such stock market) in the United States of America or (iii) held by
more than 2,000 Members,
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unless any of the foregoing results from action taken, directly or indirectly,
by an Interested Member or from a transaction in which a Person becomes an
Interested Member;
(d) a Member becomes an Interested Member inadvertently and (i) as
soon as practicable divests itself of Ownership of sufficient shares so that the
Member ceases to be an Interested Member and (ii) would not, at any time within
the three-year period immediately prior to a Business Combination between the
Company and such Member, have been an Interested Member but for the inadvertent
acquisition of Ownership;
(e) the Business Combination is proposed prior to the consummation or
abandonment of and subsequent to the earlier of the public announcement or the
notice required hereunder of a proposed transaction which (i) constitutes one of
the transactions described in the second sentence of this Section 27.1(e); (ii)
is with or by a person who either was not an Interested Member during the
previous three years or who became an Interested Member with the approval of the
Board of Directors or during the period described in Section 27.1(f); and (iii)
is approved or not opposed by a majority of the members of the Board of
Directors then in office (but not less than one) who were Directors prior to any
person becoming an Interested Member during the previous three years or were
recommended for election or elected to succeed such Directors by a majority of
such Directors. The proposed transactions referred to in the preceding sentence
are limited to (y) a sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions), whether as part of
a dissolution or otherwise, of assets of the Company or of any direct or
indirect majority-Owned subsidiary of the Company (other than to any direct or
indirect wholly Owned subsidiary or to the Company) having an aggregate market
value equal to 50% or more of either that aggregate market value of all of the
assets of the Company determined on a consolidated basis or the aggregate market
value of all the issued shares or (z) a proposed tender or exchange offer for
50% or more of the voting shares then in issue. The Company shall give not less
than 20 days' notice to all Interested Members prior to the consummation of any
of the transactions described in clause (y) of the second sentence of this
Section 27.1(e);
(f) the Business Combination is with an Interested Member who became
an Interested Member at a time when the restrictions contained in Section
27.1(e) did not apply by reason of Section 27.1(c);
(g) As used in this Section 27.1, the term:
(i) "Affiliate" means a person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, another person.
(ii) "Associate," when used to indicate a relationship with any
person, means (A) any corporation, partnership, unincorporated association
or other entity
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of which such person is a director, officer or partner or is, directly or
indirectly, the Owner of 20% or more of any class of voting shares, (B) any
trust or other estate in which such person has at least a 20% beneficial
interest or as to which such person serves as trustee or in a similar
fiduciary capacity and (C) any relative or spouse of such person, or any
relative of such spouse, who has the same residence as such person.
(iii) "Business Combination," when used in reference to the Company
and any Interested Member of the Company, means:
(A) any merger or consolidation of any direct or indirect
majority-Owned subsidiary of the Company with (1) the Interested
Member or (2) with any other corporation, partnership, unincorporated
association or other entity if the merger or consolidation is caused
by the Interested Member and as a result of such merger or
consolidation Section 27.1 is not applicable to the surviving entity;
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions),
except proportionately as a Member, to or with the Interested Member,
whether as part of a dissolution or otherwise, of assets of the
Company or of any direct or indirect majority-Owned subsidiary of the
Company which assets have an aggregate market value equal to 10% or
more of either the aggregate market value of all the assets of the
Company determined on a consolidated basis or the aggregate market
value of all the shares then in issue;
(C) any transaction which results in the issuance or transfer by
the Company or by any direct or indirect majority-Owned subsidiary of
the Company of any shares or shares of such subsidiary to the
Interested Member, except (1) pursuant to the exercise, exchange or
conversion of securities exercisable for, exchangeable for or
convertible into shares or the shares of a direct or indirect
majority-Owned subsidiary of the Company which securities were in
issue prior to the time that the Interested Member became such; (2)
pursuant to a Holding Company Merger; (3) pursuant to a dividend or
distribution paid or made, or the exercise, exchange or conversion of
securities exercisable for, exchangeable for or convertible into
shares or the shares of a direct or indirect majority-Owned subsidiary
of the Company which security is distributed, pro rata, to all holders
of a class or series of shares subsequent to the time the Interested
Member became such; (4) pursuant to an exchange offer by the Company
to purchase shares made on the same terms to all holders of said
shares; or (5) any issuance or transfer of shares by the Company;
provided, however, that in no case under (3)-(5) above shall there be
an increase in the Interested Member's proportionate interest in the
shares of any class or series or of the voting shares;
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(D) any transaction involving the Company or any direct or
indirect majority-Owned subsidiary of the Company which has the
effect, directly or indirectly, of increasing the proportionate
interest of the shares of any class or series, or securities
convertible into the shares of any class or series, or of the interest
of the shares of any such subsidiary which is Owned by the Interested
Member, except as a result of immaterial changes due to fractional
share adjustments or as a result of any purchase or redemption of any
shares not caused, directly or indirectly, by the Interested Member;
or
(E) any receipt by the Interested Member of the benefit, directly
or indirectly (except proportionately as a Member), of any loans,
advances, guarantees, pledges or other financial benefits (other than
those expressly permitted in subsections (A)-(D) of this Section
27.1(g)(iii)) provided by or through the Company or any direct or
indirect majority-Owned subsidiary of the Company.
(iv) "control," including the terms "controlling," "controlled by" and
"under common control with," means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies
of a person, whether through the Ownership of voting shares, by contract,
or otherwise. A person who is the Owner of 20% or more of the issued or
outstanding voting shares of any corporation, partnership, unincorporated
association or other entity shall be presumed to have control of such
entity, in the absence of proof by a preponderance of the evidence to the
contrary. Notwithstanding the foregoing, a presumption of control shall
not apply where such person holds voting shares, in good faith and not for
the purpose of circumventing this section, as an agent, bank, broker,
nominee, custodian or trustee for one or more Owners who do not
individually or as a group have control of such entity.
(v) "Interested Member" means any person (other than the Company and
any direct or indirect majority-Owned subsidiary of the Company) that (A)
is the Owner of 15% or more of the issued voting shares or (B) is an
Affiliate or Associate of the Company and was the Owner of 15% or more of
the issued voting shares at any time within the three-year period
immediately prior to the date on which it is sought to be determined
whether such person is an Interested Member, and also the Affiliates and
Associates of such person; provided, however, that the term "Interested
Member" shall not include any person whose Ownership of shares in excess of
the 15% limitation set forth herein is the result of action taken solely by
the Company; provided that such person shall be an Interested Member if
thereafter such person acquires additional voting shares, except as a
result of further corporate action not caused, directly or indirectly, by
such person. For the purpose of determining whether a person is an
Interested Member, the voting shares deemed to be in issue shall include
shares deemed to be Owned by the person but shall not include any other
unissued shares which
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may be issuable pursuant to any agreement, arrangement or understanding, or
upon exercise of conversion rights, warrants or options, or otherwise.
(vi) "merger or consolidation" shall be construed in accordance with
Section 203 of the Delaware General Corporation Law (as amended or re-
enacted from time to time) of the United States of America.
(vii) "Owner" including the terms "Own," "Owned" and "Ownership" when
used with respect to any shares means a person that individually or with or
through any of its Affiliates or Associates:
(A) beneficially Owns such shares, directly or indirectly;
(B) has (1) the right to acquire such shares (whether such right
is exercisable immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding, or upon the exercise
of conversion rights, exchange rights, warrants or options, or
otherwise; provided, however, that a person shall not be deemed the
Owner of shares tendered pursuant to a tender or exchange offer made
by such person or any of such person's Affiliates or Associates until
such tendered shares is accepted for purchase or exchange; or (2) the
right to vote such shares pursuant to any agreement, arrangement or
understanding; provided, however, that a person shall not be deemed
the Owner of any shares because of such person's right to vote such
shares if the agreement, arrangement or understanding to vote such
shares arises solely from a revocable proxy or consent given in
response to a proxy or consent solicitation made to 10 or more
persons; or
(C) has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting (except voting pursuant to a
revocable proxy or consent as described in Section
27.1(g)(vii)(B)(2)), or disposing of such shares with any other person
that beneficially Owns, or whose Affiliates or Associates beneficially
Own, directly or indirectly, such shares.
(viii) "voting shares" means, with respect to the Company or any
other corporation, shares or stock of any class or series which entitles
the holder to vote generally in the election of directors and, with respect
to any other entity that is not a corporation, any equity interest which
entitles the holder to vote generally in the election of the governing body
of such entity.
XXVIII. SEAL
28.1 The Board of Directors may adopt a seal, alter the seal at its
pleasure and authorize it to be used by causing it or a facsimile to be affixed
or impressed or reproduced in any other manner.
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XXIX. OFFICERS
29.1 The officers of the Company shall be chosen by the Board of Directors
and shall include a President and a Secretary and may also include a Chairman of
the Board of Directors, a Vice Chairman of the Board of Directors, one or more
Vice Presidents (who may be further classified by such descriptions as
"Executive," "Senior" or "Assistant" as determined by the Board of Directors),
and such other officers, as the Board of Directors may deem necessary or
appropriate. The Board of Directors may from time to time authorize any officer
to appoint and remove any other officer or agent and to prescribe such person's
authority and duties. Any person may hold at one time two or more offices.
Each officer shall have such authority and perform such duties, in addition to
those specified in these Articles, as may be prescribed by the Board of
Directors from time to time.
29.2 Each officer shall hold office for the term for which elected or
appointed by the Board of Directors, and until the person's successor has been
elected or appointed and qualified or until such person's earlier resignation or
removal. Any officer may be removed by the Board of Directors, with or without
cause. The election or appointment of an officer shall not in and of itself
create contractual rights against the Company. Any officer may resign at any
time by giving written notice to the Board of Directors or the Secretary. Any
such resignation shall take effect at the time specified therein or, if such
time is not specified therein, then upon receipt of such notice; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
29.3 The Chairman of the Board of Directors shall be a member of the Board
of Directors. The Chairman of the Board of Directors shall preside at all
meetings of the Board of Directors and, if so designated by the Board of
Directors, shall be the Chief Executive Officer of the Company. If designated
Chief Executive Officer, the Chairman of the Board of Directors shall, subject
to the control of the Board of Directors, be responsible for the day-to-day
management of the business and affairs of the Company and shall enjoy all other
powers commonly incident to the office of Chief Executive Officer.
29.4 Unless there shall be a Chairman of the Board of Directors designated
by the Board of Directors as the Chief Executive Officer of the Company, the
President shall be the Chief Executive Officer of the Company. Subject to the
control of the Board of Directors and the Chairman of the Board of Directors (if
designated Chief Executive Officer), the President shall be responsible for the
day-to-day management of the business and affairs of the Company and shall enjoy
all other powers commonly incident to the office. If the President shall not be
designated the Chief Executive Officer of the Company, such President shall have
such authority and perform such duties as may be prescribed from time to time by
the Board of Directors.
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29.5 Each of the Vice Presidents shall have such authority and perform
such duties as may be prescribed from time to time by the Board of Directors.
29.6 The Secretary shall keep the minutes of the meetings of the Members
and the Board of Directors and give notice of such meetings and shall perform
like duties for the committees of the Board of Directors when so required. The
Secretary shall have custody of the seal and affix and attest the seal to any
instrument to be executed under seal and enjoy all powers commonly incident to
the office. In the case of the absence or inability to act of the Secretary,
any Assistant Secretary (or, in the case of keeping minutes of a meeting of
Members or Directors, any other person designated by the presiding officer of
such meeting) may act in the Secretary's place.
29.7 Compensation of officers, agents and employees of the Company shall
be fixed from time to time by, or under the authority of, the Board of
Directors.
XXX. DIVIDENDS AND RESERVES
30.1 Subject to the Statute and any rights and restrictions for the time
being attached to any class or series of shares, the Board of Directors may from
time to time declare dividends (including interim dividends) on the shares
issued and authorize payment of the same out of the funds of the Company
lawfully available therefor.
30.2 Subject to the Statute and any rights and restrictions for the time
being attached to any class or series of shares, all dividends shall be declared
and paid according to the amounts paid or credited as paid on the shares in
respect of which the dividend is paid, but no amount paid or credited as paid on
a share in advance of calls shall be treated for the purposes of this Section
30.2 as paid on the share. Subject to the Statute and any rights and
restrictions for the time being attached to any class or series of shares, all
dividends shall be apportioned and paid proportionately to the amounts paid or
credited as paid on the shares during any portion or portions of the period in
respect of which the dividend is paid but if any share is issued on terms
providing that it shall rank for dividend as from a particular date such share
shall rank for dividend accordingly.
30.3 If several persons are registered as joint holders of any share, any
of them may give effectual receipts for any dividends, bonuses or other moneys
payable on or in respect of the share.
30.4 The Board of Directors may deduct from any dividend payable to any
Member all sums of money (if any) presently payable by him to the Company or
account of calls or otherwise.
30.5 The Board of Directors may declare that any dividend be paid wholly
or partly by the distribution of shares or other securities of the Company
and/or specific assets and in particular of paid-up shares, debentures or
debenture stock of any other company or in any one or more of such ways, and
where any difficulty arises in regard to such distribution, the Board of
Directors may settle the same as it deems expedient and in
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particular may issue fractional shares and fix the value for distribution of
such specific assets or any part thereof and may determine that cash payments
shall be made to any Members upon the footing of the value so fixed in order to
adjust the rights of all Members and may vest any such specific assets in
trustees as may seem expedient to the Board of Directors.
30.6 No dividend shall bear interest against the Company unless expressly
authorized by the Board of Directors.
XXXI. CAPITALIZATION
31.1 The Company may upon the recommendation of the Board of Directors
capitalize any sum standing to the credit of any of the Company's reserve
accounts (including share premium account and capital redemption reserve fund)
or any sum standing to the credit of profit and loss account or otherwise
available for distribution and to appropriate such sum to Members in the
proportions in which such sum would have been divisible amongst them had the
same been a distribution of profits by way of dividend and to apply such sum on
their behalf in paying up in full unissued shares (not being redeemable shares)
for allotment and distribution credited as fully paid up to and amongst them in
the proportion aforesaid. In such event the Board of Directors shall do all
acts and things required to give effect to such capitalization, with full power
to the Board of Directors to make such provisions as it thinks fit for the case
of shares becoming distributable in fractions (including provisions whereby the
benefit of fractional entitlements accrue to the Company rather than to the
Members concerned). The Board of Directors may authorize any person to enter on
behalf of all of the Members interested into an agreement with the Company
providing for such capitalization and matters incidental thereto, and any
agreement made under such authority shall be effective and binding on all
concerned.
XXXII. AUDIT
32.1 The accounts relating to the Company's affairs shall be audited in
such manner, if at all, as may be determined from time to time by the Board of
Directors.
XXXIII. NOTICES
33.1 Notices shall be in writing and may be given by the Company to any
Member either by first class United States mail, "overnight" or other express
delivery service, telegram, telex, cable, telecopy, facsimile or personal
delivery. Notices are deemed to have been given: by mail, three days after
deposited in the United States mail with postage prepaid; by "overnight" or
other express delivery service, the day after sending; by telegram, telex or
cable, at the time of sending; by telecopy or facsimile, upon receipt of a
transmittal confirmation; and by personal delivery, at the time of delivery.
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33.2 A notice may be given by the Company to the person or persons which
the Company has been advised are entitled to a share or shares in consequence of
the death or bankruptcy of a Member by any manner set forth in Section 33.1
addressed to them by name, or by the title of representatives of the deceased,
or trustee of the bankruptcy, or by any like description at the address supplied
for that purpose by the persons claiming to be so entitled.
33.3 A notice may be given by the Company to the joint holders of record
of a share by giving the notice to the joining holder first named on the
Register in respect of the share.
33.4 Notice of every general meeting of the Company shall be given in any
manner hereinbefore authorized to:
(a) every holder of voting shares as shown in the Register as of the
record date for such meeting except that in the case of joint holder the notice
shall be sufficient if given to the joint holder first named in the Register;
(b) every person upon whom the ownership of a voting share devolves by
reason of his being a legal personal representative or a trustee in bankruptcy
of a holder of voting shares where such holder but for his death or bankruptcy
would be entitled to receive notice of the meeting; and
(c) except as otherwise required by law or these Articles, no other
person shall be entitled to receive notice of general meetings.
XXXIV. LIMITATION OF LIABILITY AND INDEMNITY
34.1 (a) No Director shall be personally liable to the Company or, if
any, its Members for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or, if any, to its Members, (ii) for acts or omissions
not in good faith or that involve intentional misconduct or a knowing violation
of law or (iii) for any transaction from which the Director derived an improper
personal benefit.
(b) The Company shall indemnify, to the fullest extent permitted by
the laws of the Cayman Islands as from time to time in effect, if any, any
person who was or is a party or is threatened to be made a party to, or
otherwise requires representation by counsel in connection with, any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (whether or not an action by or in the right of
the Company) by reason of the fact that he is or was a Director or officer of
the Company, or, while serving as a Director or officer of the Company, is or
was serving at the request of the Company, as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity. The right to indemnification conferred by this Section 34.1 also
shall include the right of such persons
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to be paid in advance by the Company for their expenses to the fullest extent
permitted by the laws of the Cayman Islands as from time to time in effect. The
right to indemnification conferred on such persons by this Section 34.1 shall be
a contractual right.
(c) Unless otherwise determined by the Board of Directors, the Company
shall indemnify to the fullest extent permitted by the laws of the Cayman
Islands as from time to time in effect, if any, any person who was or is a party
or is threatened to be made a party to, or otherwise requires representation by
counsel in connection with, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (whether or
not an action by or in the right of the Company), by reason of the fact that he
is or was an employee (other than an officer) or agent of the Company, or is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity.
(d) The rights and authority conferred in this Section 34.1 shall not
be exclusive of any other right that any person has or hereafter acquires under
any law, provision of these Articles or the Memorandum, agreement, vote of
Members or of the Board of Directors or otherwise.
(e) Neither the amendment nor repeal of this Section 34.1, nor the
adoption of any provision of the Memorandum or these Articles or of any law
inconsistent with this Section 34.1, shall eliminate or reduce the effect of
this Section 34.1 in respect of any acts or omissions occurring prior to such
amendment, repeal or adoption of an inconsistent provision.
XXXV. BOOKS AND RECORDS
35.1 In addition to any rights which may be conferred on Members by
Statute, upon written demand under oath stating the purpose thereof, any Member,
in person or by attorney or other agent, may review for any proper purpose,
during usual hours for business, the books and records of the Company including,
without limitation, the Register. A proper purpose shall mean a purpose
reasonably related to such person's interest as a Member. In every instance
where an attorney or other agent shall be the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing which authorizes the attorney or other agent to so act on
behalf of the Member. The demand under oath shall be directed to the
corporation at its principal executive offices.
The Board of Directors may establish procedures for, or limitations or
conditions on, Members' review of books and records of the Company for the
purpose of (a) protecting the interests of the Company, (b) protecting the
confidentiality of the information contained in those books and records, (c) the
convenience of the Company,
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or (d) protecting any other interest of the Company that the Board of Directors
deems proper.
XXXVI. WINDING UP
36.1 In the event of any dissolution, liquidation or winding up of the
Company, whether voluntary or involuntary, after there shall have been paid or
set aside for payment to the holders of any issued shares ranking senior to the
Ordinary Shares as to distribution on liquidation or distribution on winding up,
the full amounts to which they shall be entitled and the holders of the then-
issued Ordinary Shares shall be entitled to receive, pro rata according to the
number of Ordinary Shares registered in the names of such Members, any remaining
assets of the Company available for distribution to its Members; provided, if,
at such time, the holder of Ordinary Shares has any outstanding debts,
liabilities or engagements to or with the Company (whether presently payable or
not), either alone or jointly with any other person, whether a Member or not
(including, without limitation, any liability associated with the unpaid
purchase price of such Ordinary Shares), the liquidator appointed to oversee the
liquidation of the Company may deduct from the amount payable in respect of such
Ordinary Shares the aggregate amount of such debts, liabilities and engagements
and apply such amount to any of such holder's debts, liabilities or engagements
to or with the Company (whether presently payable or not). The liquidator may
with the sanction of a Special Resolution distribute, in kind, to the holders of
the Ordinary Shares remaining assets of the Company or may, without the need of
any such sanction sell, transfer or otherwise dispose of all or any part of such
remaining assets to any other person, corporation, trust or entity and receive
payment therefor in cash, shares or obligations of such other person,
corporation, trust or entity or any combination thereof, and may sell all or any
part of the consideration so received, and may distribute the consideration
received or any balance or proceeds thereof to holders of the Ordinary Shares.
The liquidator may, with the like sanction, vest the whole or any part of such
assets in trustees upon such trusts for the benefit of the contributories as the
liquidator, with the like sanction shall think fit, but so that no Member shall
be compelled to accept any shares or other securities whereon there is any
liability.
XXXVII. DEREGISTRATION
37.1 (a) The Company may by Special Resolution resolve to be registered
by way of continuation in a jurisdiction outside the Cayman Islands or such
other jurisdiction in which it is for the time being incorporated, registered or
existing; and
(b) In furtherance of a resolution adopted pursuant to (a) above of
this Section 37.1, the Directors may cause an application to be made to the
Registrar of Companies to deregister the Company in the Cayman Islands or such
other jurisdiction in which it is for the time being incorporated, registered or
existing and may cause all such further steps as they consider appropriate to be
taken to effect the transfer by way of continuation of the Company.
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XXXVIII. FISCAL YEAR
38.1 Each Fiscal Year shall commence on such date as may be specified by
the Board of Directors.
XXXIX. AMENDMENTS OF ARTICLES
39.1 Subject to the Statute, the Company may at any time and from time to
time by Special Resolution alter or amend these Articles in whole or in part.
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EXHIBIT 99.1
*********************************
[TRANSOCEAN SEDCO FOREX LOGO] TRANSOCEAN SEDCO FOREX INC.
Post Office Box 2765
Houston TX 77252 2765
*******************************************************************************
ANALYST CONTACT: Jeffrey L. Chastain NEWS RELEASE
713 232 7551
Media Contact: Guy A. Cantwell FOR RELEASE: December 31, 1999
713 232 7647
MERGER FORMING TRANSOCEAN SEDCO FOREX COMPLETED,
ESTABLISHES WORLD'S LARGEST OFFSHORE DRILLER
HOUSTON--Transocean Offshore Inc. (NYSE: RIG) today announced that it
has completed its merger with Sedco Forex, which was spun-off from
Schlumberger Limited (NYSE: SLB) yesterday. The resulting company,
Transocean Sedco Forex Inc., is now the world's largest offshore drilling
contractor and third-largest oilfield services company in terms of equity
market capitalization, based on closing market prices on December 30.
In the merger, approximately 109.6 million ordinary shares of Transocean
Offshore are being issued to stockholders of Schlumberger. The number of
new shares issued is equivalent to 0.1936 shares of Transocean Sedco
Forex for each outstanding Schlumberger share. Following the merger,
Schlumberger stockholders hold about 52% of the approximately 210.1
million outstanding shares of Transocean Sedco Forex. Schlumberger has no
ownership interest in Transocean Sedco Forex. Shares of the company begin
trading today on the New York Stock Exchange under the trading symbol
"RIG." The company is now identified by the new CUSIP number G90078 10 9.
Victor E. Grijalva, appointed Chairman of the Board of Transocean Sedco
Forex, stated, "The offshore drilling industry now has a unique and
powerful leader, capable of offering comprehensive drilling services
throughout the world. Transocean Sedco Forex possesses critical mass in
all seven major operating regions of the world, allowing it to create
additional offshore drilling efficiencies that should benefit our global
customer base."
Expanding on the operational strengths and benefits of the company, J.
Michael Talbert, appointed President and Chief Executive Officer of
Transocean Sedco Forex, commented, "Transocean Sedco Forex is now the
model offshore drilling contractor, offering each of our stakeholders
substantial benefits. Customers will benefit from the most modern,
versatile and geographically diverse fleet, totaling 74 mobile offshore
drilling units, which includes the industry's largest fleet of deepwater
drilling rigs and unmatched expertise in technically challenging drilling
environments. Investors will realize superior trading liquidity, with a
current market capitalization approaching $7.0 billion. And, our
culturally diverse employment base of 7,500 people will recognize
enhanced international career opportunities.
<PAGE>
In addition to Mr. Grijalva and Mr. Talbert, other appointments to the
Transocean Sedco Forex executive management team include:
Jean P. Cahuzac, Executive Vice President and President of Europe, Middle
East and Africa operating regions
W. Dennis Heagney, Executive Vice President and President of Asia and the
Americas operating regions
Jon C. Cole, Executive Vice President, Marketing
Robert L. Long, Executive Vice President and Chief Financial Officer
Donald R. Ray, Senior Vice President, Technical Services
Eric B. Brown, Vice President, General Counsel and Corporate Secretary
Barbara S. Koucouthakis, Vice President, Information Systems and
Communications Technology
David Mullen, Vice President, Human Resources .
Transocean Sedco Forex Inc. is the world's largest offshore drilling
contractor. The company's 74-rig fleet is located throughout the world's
major oil and gas drilling regions, including the U.S. Gulf of Mexico,
Canada, Brazil, United Kingdom, Norway, Africa, Middle East and Asia.
Transocean Sedco Forex Inc. specializes in technically demanding segments
of the offshore drilling business, including industry-leading positions
in deepwater and harsh environment drilling services. The company is
listed on the New York Stock Exchange under the symbol "RIG".
### 99-20
<PAGE>
EXHIBIT 99.2
CR-89645 [Registrar of Companies Seal]
Certificate of Incorporation On Change of Name
I DO HEREBY CERTIFY that
TRANSOCEAN OFFSHORE INC.
having by Special Resolution dated 29th of December 1999
changed it name, is now incorporated under the name of
TRANSOCEAN SEDCO FOREX INC.
Given under my hand and Seal at George Town in the
Island of Grand Cayman this Twenty-Ninth day of
December One Thousand Nine Hundred Ninety-Nine
CERTIFIED TO BE A TRUE AND CORRECT COPY
/s/ C. Y. Jefferson
-------------------------
CINDY Y. JEFFERSON
Dep. Registrar of Companies
An Authorised Officer,
Date December 29, 1999 Registry of Companies,
-------------------- Cayman Islands, B.W.I.
<PAGE>
EXHIBIT 99.3
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ACT
(CAP.291)
CERTIFICATE OF MERGER
(SECTION 76)
No. of surviving company 23584
The Registrar of Companies of the British Virgin Islands (BVI) HEREBY CERTIFIES,
pursuant to the International Business Companies Act, Cap. 291, that Articles of
Merger between SEDCO FOREX HOLDINGS LIMITED, of the British Virgin Islands,
TRANSOCEAN SF LIMITED, of the British Virgin Islands, have this 22nd day of
December, 1999, been registered and that upon the 31st day of December, 1999,
SEDCO FOREX HOLDINGS LIMITED,
of the British Virgin Islands, shall be the surviving company of the merger.
Given under my hand and seal at Road Town,
in the Territory of the British Virgin
Islands
[Registrar of Companies Seal]
/s/ M. Herbert
CRTI003V0 REGISTRAR OF COMPANIES
