Spitfire Oil Memorandum of Association and Bye-laws
The memorandum of association of the Company provides that the Company’s principal object is to carry on business as an investment holding company. The objects are set out in full in clause 6 of the Company’s memorandum of association.
The Bye-laws contain provisions to the following effect:
Rights attaching to the Ordinary Shares
(a) Voting
Subject to any rights or restrictions attaching to any Ordinary Shares, every Shareholder present in person at a general meeting of the Company has, upon a show of hands, one vote, and every Shareholder present in person or by proxy has, upon a poll, one vote for every Ordinary Share held by him. No Shareholder may attend or vote at a general meeting of the Company in person or by proxy, or exercise any other right in respect of any Ordinary Share held by him, if any call or other sum then payable by him to the Company in respect of such share remains unpaid.
(b) Dividends
The Ordinary Shares entitle the holders to such dividends as the Board may from time to time declare.
(c) Return of capital
On liquidation of the Company, the liquidator may, with the authority of an ordinary special resolution of the Company and any other authority required by the Bermuda Act, divide all or part of the assets of the Company between holders of Ordinary Shares according to the respective amounts paid up or credited as paid up in respect of the nominal amount of the shares held by them, subject to any rights attaching to any shares. The liquidator may not distribute to a shareholder without his consent an asset to which there is attached a liability or potential liability for the owner.
None of the Ordinary Shares are redeemable by the Company, although in certain circumstances the Company may be permitted to purchase its shares in accordance with the Bermuda Act.
(d) Share transfers
The Ordinary Shares are in registered form. Any holder of Ordinary Shares may transfer all or part of his certificated shares by an instrument of transfer in any usual form or in any other form which the Board may approve. The instrument of transfer must be executed by or on behalf of the transferor, and in the case of a partly-paid share by both the transferee and the transferor.
The transferor of a share is deemed to remain the holder until the transferee’s name is entered in the register of members.
The board may, in its absolute discretion and without giving any reason, refuse to register any transfer of a share which is not a fully paid share. The board may also refuse to register a transfer of a certificated share unless the instrument of transfer is accompanied by the relevant share certificate and such other evidence of the right to transfer as the board may reasonably require.
If the board refuses to register a share transfer, it must send notice of the refusal to the transferee within three months following the delivery of the transfer to the Company. No fee is chargeable by the Company for the registration of a share transfer.
Rights attaching to the Redeemable Preference Shares
(a) Voting
The Redeemable Preference Shares do not entitle the holders to attend or vote at general meetings of the Company.
(b) Dividends
The Redeemable Preference Shares do not entitle the holders to any dividends or other distributions of an income nature.
(c) Return of capital
The Redeemable Preference Shares do not entitle the holders to a share of the surplus assets of the Company on a liquidation or winding up, whether voluntary or involuntary.
(d) Share transfers
The Redeemable Preference Shares are transferable only with the prior written consent of the board.
(e) Redemption
In the event that certain performance milestones (as approved by the Board) are achieved, a holder of Redeemable Preference Shares is entitled to receive one Ordinary Share, credited as fully paid, for every Redeemable Preference Share redeemed.
In the event such performance milestones are not achieved, the Company has the right to redeem the Redeemable Preference Shares by the payment to the holder of US$1 per 1,000,000 shares or part thereof.
Changes in class rights
The rights of the Ordinary Shares or the Redeemable Preference Shares may not be varied without the sanction of an ordinary resolution of the Company passed at a separate meeting of the holders of the Ordinary Shares or the holders of the Redeemable Preference Shares. At every such separate general meeting the quorum shall be two persons holding or representing by proxy not less than one-third in nominal value of the total issued shares of the class.
General meetings
Any general meeting, other than an annual general meeting, shall be called a special general meeting. The Company must hold an annual general meeting each year in addition to any other general meetings held in the year. Any two directors shall determine when and where annual general meetings are held and any two directors can also convene special general meetings whenever they see fit. A special general meeting can also be called by requisition by Shareholders holding not less than one tenth of the Company’s paid-up voting capital at the time the requisition is made. A special general meeting called for the passing of a special resolution or an extraordinary resolution or an annual general meeting must be convened by not less than 5 clear days’ notice in writing. Notice must be given to all Shareholders, directors and the auditors specifying the type of meeting, the date, time and location of the meeting, the general nature of the business to be discussed at the meeting and any intention to propose a special or extraordinary resolution.
Disclosure of share ownership
A Shareholder is obliged to notify the Company if he acquires an interest in three per cent. or more of the issued share capital of the Company, or if he ceases to have such an interest.
Directors
(a) Appointment of directors
Directors may be elected or appointed by the shareholders by ordinary resolution or appointed by the board. A director appointed by the board holds office only until the next following annual general meeting of the Company and is then eligible for election by the shareholders.
(b) Removal of directors by ordinary resolution
Subject to the requirements of the Bermuda Act, the Shareholders may by ordinary resolution remove any director before the expiration of his period of office and the shareholders may fill the vacancy at the meeting at which such director is removed. In the absence of such election or appointment the board may fill the vacancy.
(c) Remuneration of directors
Each of the directors shall be paid remuneration at such rate as may from time to time be determined by the board. Each director may be paid his reasonable expenses incurred by him in the conduct of the Company’s business or in the discharge of his duties as a director.
(d) Permitted interests of directors
Subject to the Bermuda Act, and provided that he has declared the nature of his interest to the board as required by the Bermuda Act, a director is not disqualified by his office from contracting with the Company in any manner, nor is any contract in which he is interested liable to be avoided; and any director who is so interested is not liable to account to the Company or the members for any benefit realised by the contract by reason of the director holding that office or of the fiduciary relationship thereby established.
A director may hold any other office or place of profit with the Company (except that of auditor) in conjunction with his office of director and may be paid such extra remuneration for so doing as the board may decide, either in addition to or in lieu of any remuneration provided for by other articles. A director may also be or become a director or other officer of, or otherwise interested in, or contract with any company promoted by the Company or in which the Company may be interested and shall not be liable to account to the Company or the members for any benefit received by him, nor shall any such contract be liable to be avoided.
A director may act by himself or his firm in a professional capacity for the Company (otherwise than as auditor) and he or his firm shall be entitled to remuneration for professional services.
(e) Restrictions on voting
A director who is directly or indirectly interested in a contract, proposed contract or arrangement with the Company and declares the nature of such interest as required by the Bermuda Act may, unless disqualified by the chairman of the relevant board meeting, vote in respect of any such contract, proposed contract or arrangement.