EFTA00623729.pdf

THE COMPANIES LAW (AS AMENDED) COMPANY LIMITED BY SHARES SECOND AMENDED AND RESTATED MEMORANDUM & ARTICLES OF ASSOCIATION OF BRH HOLDINGS GP, LTD. (ADOPTED BY SPECIAL RESOLUTION DATED JULY 13, 2007) III WALKERS Walker House. 87 Mary Street. George Town Grond Cayman KY1-9001. Cayman blonds T 345 949 0100 I' 345 949 7886 enew.walkengSobal.com NY1:1697722.2 EFTA00623729 THE COMPANIES LAW (AS AMENDED) COMPANY LIMITED BY SHARES SECOND AMENDED AND RESTATED MEMORANDUM OF ASSOCIATION OF BRH HOLDINGS GP, LTD. (ADOPTED BY SPECIAL RESOLUTION DATED JULY 13, 2007) The name of the Company is BRH HOLDINGS GP, LTD. 2. The Registered Office of the Company will be situated at the offices of Walkers SPV Limited, Walker House, 87 Mary Street, George Town, Grand Cayman KY1 -9002, Cayman Islands or at such other location as the Directors may from time to time determine. 3. The objects for which the Company is established are unrestricted, and the Company shall have full power and authority to carry out any object not prohibited by any law as provided by Section 7(4) of the Companies Law (as amended). 4. The Company shall have and be capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit as provided by Section 27(2) of the Companies Law (as amended). 5. Nothing in the preceding sections shall be deemed to permit the Company to carry on the business of a Bank or Trust Company without being licensed in that behalf under the provisions of the Banks & Trust Companies Law (as amended), 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 (as amended), or to carry on the business of Company Management without being licensed in that behalf under the provisions of the Companies Management Law (as amended). 6. The Company will not trade in the Cayman Islands with any person, firm or corporation except in furtherance of the business of the Company carried on outside the Cayman Islands; provided that nothing in this section shall be construed so as to prevent the Company from effecting and concluding contracts in the Cayman Islands, and or from exercising in the Cayman Islands all of its powers necessary for the carrying on of its business outside the Cayman Islands. 7. The liability of the members is limited to the amount, if any, unpaid on the shares respectively held by them. 8. The capital of the Company is US$50,000.00 divided into 50,000 ordinary shares of a nominal or par value of US$1.00 each, provided always that, subject to the provisions of the Companies Law (as amended) and the Articles of Association, the Company shall have power to redeem. or purchase any of its shares and to sub-divide or consolidate the said shares or any of thentaiicOL. issue all or any part of its capital whether original, redeemed, increased or red with olstxo without any preference, priority or special privilege or subject to any postponement o rights or to N, any conditions or restrictions whatsoever and so that unless the conditions of iskue 0 It - otherwise expressly provide every issue of shares whether stated to be Ordinary, Fir e or , otherwise shall be subject to the powers on the part of the Company hereinbefore provided. NY11697722.2 EFTA00623730 9. The Company may exercise the power contained in Section 226 of the Companies Law (as amended) to deregister in the Cayman Islands and be registered by way of continuation in some other jurisdiction. NY1:1697722.2 EFTA00623731 TABLE OF CONTENTS ARTICLE PAGE TABLE A 1 INTERPRETATION 1 PRELIMINARY 3 SHARES 3 VARIATION OF RIGHTS ATTACHING TO SHARES 3 UNCERTIFICATED 3 TRANSFER OF SHARES 3 TRANSMISSION OF SHARES 4 CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE 4 GENERAL MEETINGS 5 NOTICE OF GENERAL MEETINGS 5 PROCEEDINGS AT GENERAL MEETINGS 6 VOTES OF MEMBERS 7 CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS 7 DIRECTORS 7 PROXY 8 POWERS AND DUTIES OF DIRECTORS 8 BORROWING POWERS OF DIRECTORS 9 THE SEAL 9 PROCEEDINGS OF DIRECTORS 9 ACCOUNTS AND AUDIT 11 SHARE PREMIUM ACCOUNT 11 NOTICES 11 EXCULPATION 12 NON-RECOGNITION OF TRUSTS 12 WINDING UP 13 AMENDMENT OF ARTICLES OF ASSOCIATION 13 REGISTRATION BY WAY OF CONTINUATION 13 NY1:1697722.2 EFTA00623732 THE COMPANIES LAW (AS AMENDED) COMPANY LIMITED BY SHARES SECOND AMENDED AND RESTATED ARTICLES OF ASSOCIATION OF BRH HOLDINGS GP, LTD. (ADOPTED BY SPECIAL RESOLUTION DATED JULY 13, 2007) TABLE A The Regulations contained or incorporated in Table 'A' in the First Schedule of the Companies Law (as amended) shall not apply to this Company and the following Articles shall comprise the Articles of Association of the Company: INTERPRETATION 1. In these Articles: "Affiliate" means with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person; "Agreement Among Principals" means the Agreement Among Principals, dated as of the date hereof, by and among Leon D. Black, Marc J. Rowan, Joshua J. Harris, Black Family Partners, L.P., a Delaware limited partnership, MJR Foundation LLC, a New York limited liability company, BRH Professional Holdings, L.P., a Cayman Islands exempted limited partnership, and the AP Professional Holdings, L.P., a Cayman Islands exempted limited partnership. "Claim" means any threatened, pending, or completed action, suit, claim or proceeding, whether civil, criminal, administrative or investigative; "Companies Law" means the Companies Law (as amended) of the Cayman Islands; "Directors" and "Board of Directors" means the Directors of the Company for the time being, or as the case may be, the Directors assembled as a Board or as a committee thereof; "Member" means a person whose name is entered in the Register of Members and includes each subscriber to the Memorandum of Association pending the issue to him of the subscriber share or shares: "Memorandum of Association" means the Memorandum of Association of the Company,:as---.... amended and re-stated from time to time; . - :77 'WAD\ CO 'Ordinary Resolution" means a resolution: EXEMPTED re; (a) passed by a simple majority of such Members as, being entitled to do so, vote In person or, where proxies are allowed, by proxy at a general meeting of the Company art where NY1:1697722.2 EFTA00623733 a poll is taken regard shall be had in computing a majority to the number of votes to which each Member is entitled; or (b) approved in writing by all of the Members entitled to vote at a general meeting of the Company in one or more instruments, each signed by one or more of the Members, and the effective date of the resolution so adopted shall be the date on which the instrument, or the last of such instruments if more than one, is executed; "Person" shall be construed broadly and includes any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization. governmental entity or other entity. "Register of Members means the register to be kept by the Company in accordance with Section 40 of the Companies Law; "Seal" means the Common Seal of the Company (if adopted) including any facsimile thereof; "share" means any share in the capital of the Company, including a fraction of any share; "signed" includes a signature or representation of a signature affixed by mechanical means; "Special Resolution" means a resolution passed in accordance with Section 60 of the Companies Law, being a resolution: (a) passed by the unanimous consent of such Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company of which notice specifying the intention to propose the resolution as a Special Resolution has been duly given and where a poll is taken regard shall be had in computing a majority to the number of votes to which each Member is entitled; or (b) approved in writing by all of the Members entitled to vote at a general meeting of the Company in one or more instruments, each signed by one or more of the Members and the effective date of the Special Resolution so adopted shall be the date on which the instrument or the last of such instruments if more than one, is executed; 2. In these Articles, save where the context requires otherwise: (a) (b) (c) (d) (e) words importing the singular number shall include the plural number and vice versa; words importing only the masculine gender shall include the feminine gender; words importing only persons shall include companies or associations or bodies of persons, whether corporate or not; "mays shall be construed as permissive and "shall' shall be construed as imperative; references to a "dollar" or "dollars" or "S" are references to dollars of the United States; and references to a statutory enactment shall include reference to any amendment or re- enactment thereof for the time being in force. 3. No Director or Member will take any action except in a manner that is consistent with the terms of the Agreement Among Principals, and no Director or Member shall enter into any agreement or NY1:1697722.2 2 EFTA00623734 arrangement of any kind with any Person on terms inconsistent with the provisions of the Agreement Among Principals. 4. No Member may transfer his shares under any circumstances unless such transfer is unanimously approved by the Directors; provided, however, that in the event that a Director or Member ceases to be a member of the Executive Committee (as described in the Agreement Among Principals) pursuant to the Agreement Among Principals, any shares held by such Person must be transferred to the successor member at the time of the selection of such successor member without any action on the part of the former member, and such transferee shall be a "Director" and 'Member hereunder. 5. Subject to the last four preceding Articles, any words defined in the Companies Law shall, if not inconsistent with the subject or context, bear the same meaning in these Articles. PRELIMINARY 6. The registered office of the Company shall be at such address in the Cayman Islands as the Directors shall from time to time determine. The Company may in addition establish and maintain such other offii-es and places of business and agencies in such places as the Directors may from time to time determine. SHARES 7. The Company may insofar as may be permitted by law, pay a commission to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares. Such commissions may be satisfied by the payment of cash or the lodgement of fully or partly paid-up shares or partly in one way and partly in the other. The Company may also on any issue of shares pay such brokerage as may be lawful. VARIATION OF RIGHTS ATTACHING TO SHARES 8. In no event shall the share capital be divided into different classes of shares. UNCERTIFICATED 9. Every person whose name is entered as a member in the Register of Members shall, without payment, be entitled to such number of uncertificated shares of the Company as are set out next to their name in the Register of Members. 10. The shares of the Company shall not be certificated. Each share shall be transferable only on the books of the Company or on surrender thereof by the registered holder of such shares in person or by attorney, and until so transferred, the Company shall treat the registered holder of a share as the owner of the equity interest in the Company evidenced thereby for all purposes. TRANSFER OF SHARES 11. Except as set forth in Article 4, shares of the Company may not be transferred. NY1:1697722.2 3 EFTA00623735 12. Except as set forth in Article 4, the Directors may decline to register any transfer of shares without assigning any reason therefor. If the Directors refuse to register a transfer of any shares, they shall within two months after the date on which the transfer was lodged with the Company send to the transferee notice of the refusal. 13. Except as set forth in Article 4, the registration of transfers may be suspended at such times and for such periods as the Directors may, in their absolute discretion, from time to time determine, provided always that such registration shall not be suspended for more than 45 days in any year. 14. The instrument of transfer of any share shall be in any usual or common form or such other form as the Directors may, in their absolute discretion, approve and shall be executed by or on behalf of the transferor, and if in respect of a nil or partly paid-up share or if so required by the Directors, shall also be executed on behalf of the transferee, shall be accompanied by the certificate (if any) of the shares to which it relates and by such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer. The transferor shall be deemed to remain a holder of the share until the name of the transferee is entered in the Register of Members in respect thereof. 15. All instruments of transfer which are registered shall be retained by the Company, but any instrument of transfer which the Directors decline to register shall (except in any case of fraud) be returned to the person depositing the same. TRANSMISSION OF SHARES 16. The transmission of shares shall be governed by the Agreement Among Principals. 17. Subject to the Agreement Among Principals, any person becoming entitled to a share in consequence of the death of a Member shall upon such evidence being produced as may from time to time be required by the Directors, have the right either to be registered as a Member in respect of the share or, instead of being registered himself, to make such transfer of the share as the deceased person could have made; provided that such power is not exercised in a manner inconsistent with the provisions of the Agreement Among Principals. 18. Subject to the Agreement Among Principals, a person becoming entitled to a share by reason of the death of the holder shall be entitled to the same 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. CLOSING THE REGISTER OF MEMBERS OR FIXING THE RECORD DATE 19. For the purpose of determining which Members are entitled to receive notice of, attend or vote at any meeting of Members or any adjournment thereof, or in order to make a determination as to who is a Member for any other purpose, the Directors may provide that the Register of Members shall be closed for transfers for a stated period which shall not exceed in any case 40 days. If the Register of Members shall be so closed for the purpose of determining those Members that are entitled to receive notice of. attend or vote at a meeting of Members the register shall be so closed for at least 10 days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register of Members. NY1:1697722.2 4 EFTA00623736 20. In lieu of or apart from closing the Register of Members, the Directors may fix in advance a date as the record date for any such determination of those Members that are entitled to receive notice of, attend or vote at a meeting of the Members. 21. If the Register of Members is not so closed and no record date is fixed for the determination of those Members entitled to receive notice of, attend or vote at a meeting of Members, the date on which notice of the meeting is posted, shall be the record date for such determination of Members. When a determination of those Members that are entitled to receive notice of, attend or vote at a meeting of Members has been made as provided in this Article, such determination shall apply to any adjournment thereof. GENERAL MEETINGS 22. Articles 23 through 25 govern the convening of general meetings and shall be subject to the provisions of the Agreement Among Principals. 23. The Directors may, whenever they think fit, convene a general meeting of the Company. 24. General meetings shall also be convened on the written requisition of any Member or Members entitled to attend and vote at general meetings of the Company who hold not less than 10 per cent of the paid up voting share capital of the Company deposited at the registered office of the Company specifying the objects of the meeting for a date no later than 21 days from the date of deposit of the requisition signed by the requisitionists, and if the Directors do not convene such meeting for a date not later than 45 days after the date of such deposit, the requisitionists themselves may convene the general meeting in the same manner, as nearly as possible, as that in which general meetings may be convened by the Directors, and all reasonable expenses incurred by the requisitionists as a result of the failure of the Directors to convene the general meeting shall be reimbursed to them by the Company. 25. Subject to the provisions of the Agreement Among Principals, if at any time there are no Directors, any two Members (or, if there is only one Member, that Member) entitled to vote at general meetings of the Company may convene a general meeting in the same manner as nearly as possible as that in which meetings may be convened by the Directors. NOTICE OF GENERAL MEETINGS 26. Articles 27 through 28 govern the notice required for general meetings and shall be subject to the provisions of the Agreement Among Principals. 27. At least seven days notice counting from the date service is deemed to take place as provided in these Articles specifying the place, the day and the hour of the meeting and, in case of special business, the general nature of that business, shall be given in the manner hereinafter provided or in such other manner (if any) as may be prescribed by the Company by Ordinary Resolution to such persons as are, under these Articles, entitled to receive such notices from the Company, but with the consent of all the Members entitled to receive notice of some particular meeting and attend and vote thereat, that meeting may be convened by such shorter notice or without notice and in such manner as those Members may think fit 28. The accidental failure to give notice of a meeting to or the non-receipt of a notice of a meeting by any Member shall not invalidate the proceedings at any meeting. NY1:1697722.2 5 EFTA00623737 PROCEEDINGS AT GENERAL MEETINGS 29. Articles 30 through 39 govern proceedings at general meetings and shall be subject to the provisions of the Agreement Among Principals. 30. NI business carried out at a general meeting shall be deemed special with the exception of the consideration of the accounts, balance sheets, and any report of the Directors or of the Company's auditors, and the fixing of the remuneration of the Company's auditors. No special business shall be transacted at any general meeting without the consent of all Members entitled to receive notice of that meeting unless notice of such special business has been given in the notice convening that meeting. 31. No business shall be transacted at any general meeting unless a quorum of Members is present at the time when the meeting proceeds to business. Save as otherwise provided by these Articles, one or more Members holding at least a majority of the paid up voting share capital of the Company present, in person or by proxy, shall be a quorum. 32. If within half an hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of Members, shall be dissolved. In any other case, it shall stand adjourned to the same day in the next week, at the same time and place, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting, the Member or Members present and entitled to vote shall be a quorum. 33. If the Directors wish to make this facility available to Members for a specific meeting or for all general meetings of the Company, a Member may participate in any general meeting of the Company, by means of a telephone or similar communication equipment by way of which all persons participating in such meeting can hear each other and such participation shall be deemed to constitute presence in person at the meeting. 34. The chairman, if any, of the Board of Directors shall preside as chairman at every general meeting of the Company. 35. If there is no such chairman, or if at any general meeting he is not present within fifteen minutes after the time appointed for holding the meeting or is unwilling to act as chairman, the Members present shall choose one of their number to be chairman of that meeting. 36. The chairman may with the consent of any general meeting at which a quorum is present (and shall if so directed by the meeting) adjourn a meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting is adjourned for 14 days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Save as aforesaid, it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting. 37. At any general meeting, a resolution put to the vote of the meeting shall be decided on a show of hands, unless a poll is (before or on the declaration of the result of the show of hands) demanded by one or more Members present in person or by proxy entitled to vote. Unless a poll is so demanded, a declaration by the chairman that a resolution has, on a show of hands, been carried, or carried unanimously, or by a particular majority, or lost, and an entry to that effect in the book of the proceedings of the Company, shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of, or against, that resolution. 38. If a poll is duly demanded it shall be taken in such manner as the chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. NY1:1697722.2 6 EFTA00623738 39. A poll demanded on the election of a chairman of the meeting or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the chairman of the meeting directs. VOTES OF MEMBERS 40. The business and affairs of the Company and management decisions shall be governed in accordance with the Agreement Among Principals. Subject to any rights and restrictions of the Agreement Among Principals, on a show of hands every Member present in person and every person representing a Member by proxy shall at a general meeting of the Company, have one vote and on a poll every Member and every person representing a Member by proxy shall have one vote for each share of which he or the person represented by proxy is the holder. 41. Subject to the Agreement Among Principals, a Member of unsound mind, or in respect of whom an order has been made by any court having jurisdiction in lunacy, may vote, whether on a show of hands or on a poll, by his committee, or other person in the nature of a committee appointed by that court, and any such committee or other person may vote by proxy. 42. On a poll votes may be given either personally or by proxy. 43. The instrument appointing a proxy shall be in writing under the hand of the appointor or of his attorney duly authorised in writing or, if the appointor is a corporation, either under seal or under the hand of an officer or attorney duly authorised. A proxy need not be a Member. 44. An instrument appointing a proxy may be in any usual or common form or such other form as the Directors may approve. 45. The instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll. 46. A resolution in writing signed by all the Members for the time being entitled to receive notice of and to attend and vote at general meetings (or being corporations by their duly authorised representatives) shall be as valid and effective as if the same had been passed at a general meeting of the Company duly convened and held. CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS 47. Any corporation which is a Member or a Director may by resolution of its directors or other governing body authorize such person as it thinks fit to act as its representative at any meeting of the Company or of any class of Members or of the Board of Directors or of a committee of Directors, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as that corporation could exercise if it were an individual Member or Director. DIRECTORS 48. Directors shall be removed and appointed in accordance with the Agreement Among Principals, as though the Board of Directors were the Executive Committee. NY1:1697722.2 7 EFTA00623739 49. Prior to the issuance of any shares, the Directors shall be appointed by the initial Subscriber. Thereafter, the Directors may be elected by the Members through an Ordinary Resolution or Special Resolution, in each case, in accordance with the Agreement Among Principals. 50. Subject to the provisions of the Agreement Among Principals, the Company may by Special Resolution, from time to time fix the maximum and minimum number of Directors to be appointed, but unless such number is fixed as aforesaid the maximum number of Directors is three (3). 51. There shall be no remuneration for the Directors of the Company. 52. There shall be no shareholding qualification for Directors unless determined otherwise by the Company by Ordinary Resolution. PROXY 53. Subject to the provisions of the Agreement Among Principals, any Director may appoint any other Director to be the proxy of that appointing Director, to attend and vote on his behalf, in accordance with instructions given by that Director, or in the absence of such instructions at the discretion of the proxy, at a meeting or meetings of the Directors which that Director is unable to attend personally. The instrument appointing the proxy shall be in writing under the hand of the appointing Director and shall be in any usual or common form or such other form as the Directors may approve, and must be lodged with the chairman of the meeting of the Directors at which such proxy is to be used, or first used, prior to the commencement of the meeting. POWERS AND DUTIES OF DIRECTORS 54. The business and affairs of the Company and management decisions shall be governed in accordance with the Agreement Among Principals. Subject to the provisions of the Agreement Among Principals, the Companies Law, these Articles and to any resolutions made in a general meeting, the business of the Company shall be managed by the Directors, who may pay all expenses incurred in setting up and registering the Company and may exercise all powers of the Company. No resolution made by the Company in general meeting shall invalidate any prior act of the Directors which would have been valid if that resolution had not been made. 55. The Directors may from time to time appoint any person, whether or not a Director to hold such office in the Company as the Directors may think necessary for the administration of the Company, including but not limited to, the office of president, one or more vice-presidents, treasurer, assistant treasurer, manager or controller, and for such term with no remuneration, and with such powers and duties as the Directors specifically designate. Any person so appointed by the Directors may be removed by the Directors. 56. The Directors may appoint a Secretary (and if need be an Assistant Secretary or Assistant Secretaries) who shall hold office for such term, with no remuneration, upon such conditions and with such powers as they think fit. Any Secretary or Assistant Secretary so appointed by the Directors may be removed by the Directors. 57. The Directors may from time to time provide for the management of the affairs of the Company in such manner as they shall think fit. NY1:1697722.2 8 EFTA00623740 BORROWING POWERS OF DIRECTORS 58. Subject to the provisions of the Agreement Among Principals, the Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital or any part thereof, to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of the Company or of any third party. THE SEAL 59. The Seal shall not be affixed to any instrument except by the authority of a resolution of the Board of Directors provided always that such authority may be given prior to or after the affixing of the Seal and if given after may be in general form confirming a number of affixings of the Seal. The Seal shall be affixed in the presence of a Director or a Secretary (or an Assistant Secretary) or in the presence of any one or more persons as the Directors may appoint for the purpose and every person as aforesaid shall sign every instrument to which the Seal is so affixed in their presence. 60. The Company may maintain a facsimile of the Seal in such countries or places as the Directors may appoint and such facsimile Seal shall not be affixed to any instrument except by the authority of a resolution of the Board of Directors provided always that such authority may be given prior to or after the affixing of such facsimile Seal and if given after may be in general form confirming a number of affixings of such facsimile Seal. The facsimile Seal shall be affixed in the presence of such person or persons as the Directors shall for this purpose appoint and such person or persons as aforesaid shall sign every instrument to which the facsimile Seal is so affixed in their presence and such affixing of the facsimile Seal and signing as aforesaid shall have the same meaning and effect as if the Seal had been affixed in the presence of and the instrument signed by a Director or a Secretary (or an Assistant Secretary) or in the presence of any one or more persons as the Directors may appoint for the purpose. 61. Notwithstanding the foregoing, a Secretary or any Assistant Secretary shall have the authority to affix the Seal, or the facsimile Seal, to any instrument for the purposes of attesting authenticity of the matter contained therein but which does not create any obligation binding on the Company. PROCEEDINGS OF DIRECTORS 62. Articles 63 through 76 govern the proceedings of directors and shall be subject to the provisions of the Agreement Among Principals. 63. Unless otherwise specified under the Companies Law, these Articles, or the Agreement Among Principals, Directors shall act by a majority vote at a duly constituted meeting or unanimous written consent. 64. The Directors may meet together (either within or without the Cayman Islands) for the despatch of business, adjourn, and otherwise regulate their meetings and proceedings as they think fit. A Director may, and a Secretary or Assistant Secretary on the requisition of a Director shall, at any time summon a meeting of the Directors. 65. A Director or Directors may participate in any meeting of the Board of Directors, by means of telephone or similar communication equipment by way of which all persons participating in such meeting can hear each other and such participation shall be deemed to constitute presence in person at the meeting. NV1:1697722.2 9 EFTA00623741 66. The quorum necessary for the transaction of the business of the Directors may be fixed by the Directors by unanimous consent, and unless so fixed, a quorum shall require the presence of all Directors. A Director represented by proxy at any meeting shall be deemed to be present for the purposes of determining whether or not a quorum is present. 67. Subject to the Agreement Among Principals, a Director may vote in respect of any contract or proposed contract or arrangement notwithstanding that he may be interested therein and if he does so his vote shall be counted and he may be counted in the quorum at any meeting of the Directors at which any such contract or proposed contract or arrangement shall come before the meeting for consideration. 68. A Director may hold any other office or place of profit under the Company (other than the office of auditor) in conjunction with his office of Director for such period and on such terms (as to remuneration and otherwise) as the Directors may determine and no Director or intending Director shall be disqualified by his office from contracting with the Company either with regard to his tenure of any such other office or place of profit or as vendor, purchaser or otherwise, nor shall any such contract or arrangement entered into by or on behalf of the Company in which any Director is in any way interested, be liable to be avoided, nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or arrangement by reason of such Director holding that office or of the fiduciary relation thereby established. A Director, notwithstanding his interest, may be counted in the quorum present at any meeting of the Directors whereat he or any other Director is appointed to hold any such office or place of profit under the Company or whereat the terms of any such appointment are arranged and he may vote on any such appointment or arrangement. 69. My Director may act by himself or his firm in a professional capacity for the Company, and he or his firm shall be entitled to remuneration for professional services as if he were not a Director; provided that nothing herein contained shall authorise a Director or his firm to act as auditor to the Company. 70. The Directors shall cause minutes to be made in books or loose-leaf folders provided for the purpose of recording: (a) all appointments of officers made by the Directors; (b) the names of the Directors present at each meeting of the Directors and of any committee of the Directors; (c) all resolutions and proceedings at all meetings of the Company, and of the Directors and of committees of Directors. 71. When the chairman of a meeting of the Directors signs the minutes of such meeting those minutes shall be deemed to have been duly held notwithstanding that all the Directors have not actually come together or that there may have been a technical defect in the proceedings. 72. A resolution signed by all the Directors shall be as valid and effectual as if it had been passed at a meeting of the Directors duly called and constituted. When signed a resolution may consist of several documents each signed by one or more of the Directors. 73. The continuing Directors may act notwithstanding any vacancy in their body but if and so long as their number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum of Directors, the continuing Directors may act for the purpose of increasing the number, or of summoning a general meeting of the Company, but for no other purpose. NY1:1697722.2 10 EFTA00623742 74. The Directors may elect a chairman of their meetings and determine the period for which he is to hold office but if no such chairman is elected, or if at any meeting the chairman is not present within fifteen minutes after the time appointed for holding the meeting, the Directors present may choose one of their number to be chairman of the meeting. 75. A committee appointed by the Directors may elect a chairman of its meetings. If no such chairman is elected, or if at any meeting the chairman is not present within five minutes after the time appointed for holding the meeting, the members present may choose one of their number to be chairman of the meeting. 76. All acts done by any meeting of the Directors, shall notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such Director, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director. ACCOUNTS AND AUDIT 77. The books of account relating to the Company's affairs shall be kept in such manner as may be determined from time to time by the Directors. 78. The books of account shall be kept at the registered office of the Company, or at such other place or places as the Directors think fit, and shall always be open to the inspection of the Directors. 79. The Directors shall from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of Members not being Directors, and no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by law or authorised by the Directors or by the Company by Ordinary Resolution. 80. The accounts relating to the Company's affairs shall only be audited if the Directors so determine, in which case the financial year end and the accounting principles will be determined by the Directors. SHARE PREMIUM ACCOUNT 81. The Directors shall in accordance with Section 34 of the Companies Law establish a share premium account and shall carry to the credit of such account from time to time a sum equal to the amount or value of the premium paid on the issue of any share. 82. There shall be debited to any share premium account on the redemption or purchase of a share the difference between the nominal value of such share and the redemption or purchase price provided always that at the discretion of the Directors such sum may be paid out of the profits of the Company or, if permitted by Section 37 of the Companies Law, out of capital. NOTICES 83. My notice or document may be served by the Company or by the person entitled to give notice to any Member either personally, by facsimile or by sending it through the post in a prepaid letter or via a recognised courier service, fees prepaid, addressed to the Member at his address as appearing in the Register of Members. In the case of joint holders of a share, all notices shall be NY1:1697722.2 11 EFTA00623743 given to that one of the joint holders whose name stands first in the Register of Members in respect of the joint holding, and notice so given shall be sufficient notice to all the joint holders. 84. My Member present, either personally or by proxy, at any meeting of the Company shall for all purposes be deemed to have received due notice of such meeting and, where requisite, of the purposes for which such meeting was convened. 85. Any notice or other document, if served by (a) post, shall be deemed to have been served five days after the time when the letter containing the same is posted, or, (b) facsimile, shall be deemed to have been served upon production by the transmitting facsimile machine of a report confirming transmission of the facsimile in full to the facsimile number of the recipient or (c) recognised courier service, shall be deemed to have been served 48 hours after the time when the letter containing the same is delivered to the courier service. In proving service by post or courier service it shall be sufficient to prove that the letter containing the notice or documents was properly addressed and duly posted or delivered to the courier service. 86. My notice or document delivered or sent by post to or left at the registered address of any Member in accordance with the terms of these Articles shall notwithstanding that such Member be then dead or bankrupt, and whether or not the Company has notice of his death or bankruptcy, be deemed to have been duly served in respect of any share registered in the name of such Member as sole or joint holder, unless his name shall at the time of the service of the notice or document, have been removed from the Register of Members as the holder of the share, and such service shall for all purposes be deemed a sufficient service of such notice or document on all persons interested (whether jointly with or as claiming through or under him) in the share. 87. Notice of every general meeting of the Company shall be given to: (a) all Members holding shares with the right to receive notice and who have supplied to the Company an address for the giving of notices to them; and (b) every person entitled to a share in consequence of the death or bankruptcy of a Member, who but for his death or bankruptcy would be entitled to receive notice of the meeting. No other person shall be entitled to receive notices of general meetings. EXCULPATION 88. No such Director, alternate Director, Secretary, Assistant Secretary or other officer of the Company (but not including the Company's auditors) shall be liable (a) for the acts, receipts, neglects, defaults or omissions of any other such Director or officer or agent of the Company or (b) for any loss on account of defect of title to any property of the Company or (c) on account of the insufficiency of any security in or upon which any money of the Company shall be invested or (d) for any loss incurred through any bank, broker or other similar person or (e) for any loss occasioned by any negligence, default, breach of duty, breach of trust, error of judgement or oversight on his part or (I) for any loss, damage or misfortune whatsoever which may happen in or arise from the execution or discharge of the duties, powers authorities, or discretions of his office or in relation thereto, unless the same shall happen through his own dishonesty. NON-RECOGNITION OF TRUSTS 89. No person shall be recognised by the Company as holding any share upon any trust and the Company shall not, unless required by law, be bound by or be compelled in any way to recognise NY1:1697722.2 12 EFTA00623744 (even when having notice thereof) any equitable, contingent or future interest in any of its shares or any other rights in respect thereof except an absolute right to the entirety thereof in each Member registered in the Register of Members. WINDING UP 90. If the Company shall be wound up the liquidator may, with the sanction of an Ordinary Resolution of the Company divide amongst the Members in specie or kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may, for such purpose set such value as he deems fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the Members or different classes of 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. AMENDMENT OF ARTICLES OF ASSOCIATION 91. Subject to the Companies Law and the Agreement Among Principals, the Company may at any time and from time to time by Special Resolution alter or amend these Articles in whole or in part. REGISTRATION BY WAY OF CONTINUATION 92. The Company may by Special Resolution resolve to be registered by way of continuation in a jurisdiction outside the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing. In furtherance of a resolution adopted pursuant to this Article, the Directors may cause an application to be made to the Registrar of Companies to deregister the Company in the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing and may cause all such further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company. NY1: 1697722 2 13 EFTA00623745